If the SCOTUS rules Obamacare unconstitutional...

[King]

Listening to a CSPAN feed right now... Obama once again has chosen awful appointees.  The Solicitor General and his assistants stumble on answer after answer.  It's pretty much their fault if this gets overturned.

[Swing low, sweet chariot. Comin' for to carry me home.]

Listening to a CSPAN feed right now... Obama once again has chosen awful appointees.  The Solicitor General and his assistants stumble on answer after answer.  It's pretty much their fault if this gets overturned.

you put too much weight on the oral arguments...

[King]

Listening to a CSPAN feed right now... Obama once again has chosen awful appointees.  The Solicitor General and his assistants stumble on answer after answer.  It's pretty much their fault if this gets overturned.

you put too much weight on the oral arguments...

It's important in a close case.  This is basically lobbying Kennedy hour and the President's side is looking bad.

[Torie]

Listening to a CSPAN feed right now... Obama once again has chosen awful appointees.  The Solicitor General and his assistants stumble on answer after answer.  It's pretty much their fault if this gets overturned.

you put too much weight on the oral arguments...

True. The biggest problem is that team Obama failed in its brief to come up with any kind of principled limitation that has the slightest appeal to the five conservative justices. So either Kennedy will come up with one of his own, or team Obama loses. If you raise a new point in oral argument not in your brief, that would be an "epic fail."  Judges/Justices hate that, and you might get b slapped right there in the courtroom sometimes, if the judge is dyspeptic (and some are). For you young punk lawyers, or for those of you in law school, as an attorney, try to never go there. Never! Listen to the old man on this one.

[Swing low, sweet chariot. Comin' for to carry me home.]

you put too much weight on the oral arguments...

It's important in a close case.  This is basically lobbying Kennedy hour and the President's side is looking bad.

but you're assuming Kennedy was ever on the fence regarding the mandate.

[King]

you put too much weight on the oral arguments...

It's important in a close case.  This is basically lobbying Kennedy hour and the President's side is looking bad.

but you're assuming Kennedy was ever on the fence regarding the mandate.

This is on severability, not the mandate.

[Swing low, sweet chariot. Comin' for to carry me home.]

This is on severability, not the mandate.

ok, but the severability is a pretty open and shut case - the mandate is just too central and too big of a part of the bill to cleave out.  Even many Dems have said so over the last 2 years.

[Person Man]

It actually would be a blessing in disguise in that the issue of health care would at least no longer be a burden to Democrats -they no longer have to defend an unpopular law that even their base doesn't support.  It would free up resources to go on the offensive and demand single-payer reform as the only long-term solution to our health care funding crisis.  The base will be energized as never before, while Republicans (spin aside) will be deprived of a potent issue to use against the President.   

I tend to agree here, and right-wingers who rail against judicial activism would be well-served to exercise caution here: there's a very dangerous possibility for them that if Obamacare is struck down from the bench, the democratic base will be rallied as never before, much like the right was with Abortion.

This. It will be the early 20th Century all over again with things like the Income Tax  catapulting class issues to the same level of divisiveness that in recent decades has been occupied by "ethnic" issues, such as abortion.

[Person Man]

...and of course, this could mark the Roberts court as being very similiar to the Court that decided Lockner. A SCOTUS who feels that it is its job to maintain the socioeconomic system of the United States at all costs.

[TheGlobalizer]

This is on severability, not the mandate.

ok, but the severability is a pretty open and shut case - the mandate is just too central and too big of a part of the bill to cleave out.  Even many Dems have said so over the last 2 years.

As a lawyer for a health insurer, no, it's not open and shut.

Health insurers will argue that it's the most important part of the law, but that's self-serving.  The question really becomes whether the individual mandate was necessary to make the entire program fiscally viable (probably not) or just to make certain portions of the program viable (most specifically, guaranteed issue / pre-ex; for them, probably yes).

I'm not surprised they're looking at ruling the individual mandate unconstitutional, but I am surprised that they're seriously looking at severability.  Based on what I'm seeing/hearing, the court has a very real chance of invalidating more than just the individual mandate, which I considered a longshot before this week.  I don't think they'll throw out the whole law, but guaranteed issue and pre-ex are probably the first to go down with the individual mandate, and wouldn't be surprised to see the benefit mandates fail as well, under the theory that all programmatic "enhancements" (more coverage) were predicated on the revenue from young, healthy people forced to buy in.  What's most interesting is that Kennedy and Roberts are indicating that they don't want to get into the weeds, which means that we're probably looking at a hatchet rather than a scalpel.

As for the political component here, I think it makes Obama look rebuked by the courts to the folks in the political center.  The wings will get riled up no matter what happens and that all nets out to zero, more or less.

[cavalcade]

So is this the open thread now?

So either Kennedy will come up with one of his own, or team Obama loses.

I got the impression from reading yesterday's transcript that Sotomayor personally likes the mandate but buys the activity/inactivity distinction (unlike Ginsburg/Breyer) and wants limits on Congress's power there.  I think there's a chance she pitches Kennedy a test of some kind and then convinces him that the mandate is in bounds, in addition to the chance he does it himself.

Can the justices rule separately on the mandate and on severability?  So, could we have a 5-4 "party line" decision against the mandate, but then Roberts joins the liberals to strike down just a few other parts of the law?

[TheGlobalizer]

Can the justices rule separately on the mandate and on severability?  So, could we have a 5-4 "party line" decision against the mandate, but then Roberts joins the liberals to strike down just a few other parts of the law?

Justices can concur, dissent, or concur in part, in whatever manner they choose.  I think it's likely that you see 3-4 opinions on this case - a left-wing view (Ginsburg, Breyer), a right-wing view (Scalia, Thomas, Alito), and center-right view (Roberts, Kennedy), with potentially a nuanced center-left opinion (Sotomayor and/or Kagan).

I think it nets out to a 5-4 opinion that narrowly strikes down the individual mandate and a small handful of closely related provisions.

[Torie]

You must be logged in to read this quote.

Yes, of course, and it's done all the time. Sometimes it gets very convoluted, with an opinion having six or seven subsections, with various arrays of judges signing on to each bit.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

I'll be joining the 'nets to around zero' side of all this, with the caveat that if there's any sort of clear decision along party lines this might become the same sort of rallying cry against judicial activism for the left that Roe v. Wade has been for the right, and that it's entirely possible that this could lead to a supercharged Democratic base. The reason I think it nets to zero is that I do think this might hurt Obama with the center, if only a bit since I don't anticipate the entire law to be clearly stricken, just parts of it albeit parts that are looking more significant now than they were before the oral arguments.

[They not like us]

If it is ruled unconstitutional it will have no effect on Obama being re-elected.  Both bases will be fired up for this election no matter what.

The only way it could hurt Obama is if he reacts by endorsing single payer during the campaign, and there's zero reason to do that.

[Oakvale]

By the way, I feel like pointing out that I really dislike the way that what's fundamentally a moral issue has been attacked by the Right on legal, technical grounds.

[RogueBeaver]

If it is ruled unconstitutional it will have no effect on Obama being re-elected.  Both bases will be fired up for this election no matter what.

The only way it could hurt Obama is if he reacts by endorsing single payer during the campaign, and there's zero reason to do that.

[Sbane]

What is the chance that parts of the bill that are clearly unrelated to the individual mandate like Medicaid expansion or letting people stay on their parent's insurance till 26 will be upheld? I guess things get murky when talking about state exchanges as they might have assumed a healthier population participating than might be the case without the mandate. So could we have a situation where most things are thrown out besides a few provisions that are clearly not related and won't require intimate knowledge of the health system to figure out? Or would they just say "f it, let's throw it all out"?

[Sbane]

As for politics, if suddenly people find out that their kids won't have insurance next year, or their niece won't be covered for her pre-existing condition next year, even people in the middle might get more motivated to vote for Obama and especially the Democrats down ballot.

[Gass3268]

http://www.scotusblog.com/2012/03/argument-recap-a-lift-for-the-mandate/

"A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress.  They could not come together, however, on just what task they would send across the street for the lawmakers to perform.  The net effect may well have shored up support for the individual insurance mandate itself."

 

[Swing low, sweet chariot. Comin' for to carry me home.]

http://www.scotusblog.com/2012/03/argument-recap-a-lift-for-the-mandate/

"A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress.  They could not come together, however, on just what task they would send across the street for the lawmakers to perform.  The net effect may well have shored up support for the individual insurance mandate itself."

that logic does not make sense...if they understandably don't want to go through the 2700 pages to find what can be severed from the madate, they are likely to throw out the whole thing, rather than uphold the mandate.

in other words, they're not going to spare the mandate just to keep from throwing out the entire law

[Mehmentum]

I don't feel comfortable making a prediction about how such a ruling would affect politics.  I honestly have no idea who it would help.

[Sbane]

http://www.scotusblog.com/2012/03/argument-recap-a-lift-for-the-mandate/

"A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress.  They could not come together, however, on just what task they would send across the street for the lawmakers to perform.  The net effect may well have shored up support for the individual insurance mandate itself."

 

I was thinking the same....can't wait to listen to the oral argument tonight provided cspan has it on their website again.

[Gass3268]

"What happened to the Eighth Amendment?" Scalia asked, referring to the Constitution's ban on cruel and unusual punishment. "You really expect us to go through 2,700 pages?"

My favorite line so far from the hearings, lol

[Torie]

Here I think is the single best article I have read regarding the expected half life of the mandate. Yes, Kennedy muses that health care might be a unique good, in that we all have to buy it and there are no substitutes, and that is the limiting principle, but on the other hand, then a Pandora's Box is opened, with down the road all sorts of special pleaders claiming their good is unique too - we are all unique in our own way.

And why open that Pandora's Box, when the government "ought to have been honest" as Kennedy put it as to the power it was using, and structured the mandate as a tax, to wit a tax credit with offsetting revenues - an easy fix that would have got Obamacare safely to port. But they chose to be dishonest. Thus, there is no compelling public policy reason to spring another leak in the federalism wall that leashes just what the feds can do with such an easy fix available with the same economic effects in order for the government to achieve its no doubt worthy objectives.  

The Torie finesse was always the Achilles heel in Obamacare. Absent that, I suspect Kennedy would vote to uphold. I put the odds at from about 3-2 to 2-1 that Kennedy will tank the mandate. The article speculates that Sotomayor may join him in a 6-3 decision FWIW. I tend to doubt it, but who knows of course.