This group - including Roberts, do not have the mental fortitude (aka, testicles) to overturn this legislation. Krauthammer and our favorite Libertarian, Mike Church are exactly right. This Court will do anything, make any argument to uphold this law. They (especially Roberts) don't want to be seen as an activist bench. Those responses from the petitioners were right on point to remind them they don't want to be seen that way.
It is just a continuation of the last 50 years of expansion of the Federal Government. Don't be fooled by the questions; they are just looking for more ammo to cite in their concurring opinions. As I said before, Kagan probably brought the opinion over with her from SG’s office when she took the job.
From Fox:
"One way or another, Congress will have to revisit it in toto," said Justice Antonin Scalia.
Agreeing, Justice Anthony Kennedy said it would be an "extreme proposition" to allow the various insurance regulations to stand after the mandate was struck down.
Meanwhile, the court's liberal justices argued for restraint. Justice Ruth Bader Ginsburg said the court should do a "salvage job," not undertake a “wrecking operation." But she looked to be out-voted.
Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. said they shared the view of Scalia and Kennedy that the law should stand or fall in total. Along with Justice Clarence Thomas, they would have a majority to strike down the entire statute as unconstitutional.
If I’m not mistaken, because the Dems didn’t plan on Scott Brown getting elected, they didn’t “touch up” the bill like they would have and didn’t put in the severability (sp?) clause. There was something about they thought the other house would have changes and put that in but they never got a chance.
I thought that because of that, if part is found un-Constitutional, all of it has to get thrown out, right? I could be wrong, I’m just asking if someone else knows about this......
OTOH, the Court WILL NOT allow Congress to claim a power NOT specified in the Constitution.
Requiring a person to enter into a compulsory contract has been invalid for centuries - and the Founding Fathers knew this.
Forcing someone to enter the marketplace so that Congress can regulate them under the Interstate Commerce Clause is a non sequitor. Fining someone for failure to do so is ALSO invalid.
IF the Court declares the mandate [and the rest of the law] unconstitutional, it is NOT activism - it is the duty of the Court. For as Justice John Marshall stated in Marbury v. Madison [an opinion that DEMs CLAIM they revere]:
"It is emphatically the province and duty of the judicial department to say what the law is ..."