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Thursday, March 29, 2012

ObamaCare in the United States Supreme Court:
The Three Days of Arguments

The United States Supreme Court
Photo by Scarlet Holland


This is a recap of the three days of oral arguments in the Supreme Court and excerpts (with links) to the coverage by SCOTUSblog and the Texas Public Policy Foundation. I've embedded the audio from the Supreme Court so you can listen to the full arguments by both sides and hear the justices speak for yourself so you don't have to listen to some talking head tell you what they said.


You can also download a PDF Guide on the issues before the Supreme Court from the Texas Public Policy Foundation.



Day One

I have embedded the full audio from today's oral argument in the Supreme Court:

Download MP3


The curtain lifted this morning on the first act of the three-day drama that is the challenge to the Patient Protection and Affordable Care Act (ACA), also known (more colloquially) as just “the health care statute” and (mostly) by opponents “Obamacare.” And what a scene it was. Outside, protesters gathered with megaphones, while inside the courtroom the reporters craned their necks to spot politicians and other influential Washingtonians in the gallery.


The procedural issue before the Court in today’s argument was whether an obscure Reconstruction-era law, the Anti-Injunction Act (AIA), would bar the Court from even considering the merits of the question that most people regard as the main event of the health care litigation: the constitutionality of the ACA’s requirement that virtually all Americans obtain health insurance by January 1, 2014 or face a penalty.


The issue comes up because the AIA prohibits lawsuits to challenge a tax until the tax has actually been assessed; the penalty for the failure to obtain insurance in the health care statute is, the argument goes, a tax for purposes of the AIA.


By the time the ninety minutes of argument were over, it seemed likely that the answer to that question is that the AIA will not stop the Court from deciding the constitutionality of the mandate. But if it remains to be seen how the Court will reach this result and move on to consider the mandate on its merits.
Source: SCOTUSblog: Anti-Injunction Act oral argument: In Plain English


TODAY’S ISSUE: The applicability of the Anti-Injunction Act (AIA) as it relates to the individual mandate’s tax penalty.


KEY POINTS FROM THE ARGUMENT: Most of the justices seemed skeptical of the argument that the challenge to the individual mandate is barred by the AIA because the mandate is a tax. As Justice Ginsburg noted, “This is not a revenue-raising measure, because, if it’s successful, they won’t – nobody will pay the penalty and there will be no revenue to raise.” Justice Breyer agreed: “They called it a penalty and not a tax for a reason.”
Source: PPAC Action: Florida v. HHS - What Happened Monday

Recap of SCOTUSblog coverage
Condensed Audio of argument from SCOTUSblog
ObamaCare on trial, day 1 from Texas PolicyCast



Day Two

The full audio from today's oral argument in the Supreme Court:

Download MP3


This morning the Court reconvened to hear two hours’ worth of oral arguments on the question at the heart of the battle over the Patient Protection and Affordable Care Act (ACA): whether the government can require virtually all Americans to obtain health insurance by January 1, 2014 or face a penalty. Although this question had long been regarded as the “main event” of the three days that the Court will devote to oral arguments on the ACA, it gained even more significance (to the extent that such a thing is possible) after yesterday’s argument, in which the Justices signaled that they are not likely to let a little-known nineteenth-century law deter them from reaching the merits of today’s question. And after today’s argument, it is not at all clear whether the mandate will survive.
Source: SCOTUSblog: Today’s argument in Plain English: Will the mandate squeak by?


KEY POINTS FROM THE ARGUMENT: Several of the justices expressed skepticism about the propriety of the mandate. Justice Kennedy stated that the mandate “changes the relationship of the Federal Government to the individual in the very fundamental way.” Justice Scalia said that a law which violates the principle of limited powers cannot be “proper” within the meaning of the Necessary and Proper Clause. And Justices Roberts and Alito seemed deeply troubled by the government’s inability to articulate a limiting principle for the federal commerce power.


The Justices who seemed to favor the mandate’s constitutionality did not seem to agree on the basis for sustaining the law. Justice Breyer effectively conceded the challengers’ argument that upholding the mandate would make federal authority unlimited. Justice Ginsburg, by contrast, focused more narrowly on the costs uncompensated care have on the wider health insurance market.
Source: PPAC Action: What Happened at Today’s Oral Argument



Recap of SCOTUSblog coverage

Condensed Audio of argument from SCOTUSblog

ObamaCare on trial, day 2 from Texas PolicyCast

Interview With Mario Loyola on the Constitutionality of ObamaCare on the BattleSwarm Blog



Day Three

The full audio from today's oral argument in the Supreme Court is divided into two parts, severability and the medicaid expansion argument:



Severability Argument

Download MP3



Expansion of Medicaid Argument

Download MP3



This morning the Court returned for the final set of arguments in the challenges to the Affordable Care Act (ACA). First up in the morning, for ninety minutes, was the question of “severability” – what part, if any, of the ACA survives if the Court holds that the mandate is unconstitutional? Many people who follow the Court had predicted that this argument could be a largely hypothetical (and therefore boring) one if it seemed clear yesterday that the Court would uphold the mandate. But with the prospect that the mandate will be struck down very real, everyone was now watching this severability argument carefully. And it was far from boring.

Paul Clement was back at the podium this morning on behalf of the twenty-six states challenging the ACA, to argue that if the mandate falls it must take all the rest of the Act with it. He began by emphasizing that the government agreed with him on one point: if the mandate falls, so also must two related provisions that require insurance companies to provide insurance to everyone, even sick people, at reasonable rates. But then he took that argument further, telling the Court that it would then need to strike down other provisions that were also related to the mandate. (He listed a series of such provisions in an approach that evoked the old children’s song: “The hip bone is connected to the thigh bone, the thigh bone is connected to the knee bone . . . .”) Because what would be left, he concluded, was merely a hollow shell, the better option would be to strike down the whole law and let Congress start over with a clean slate.
Source: SCOTUSblog: In Plain English: Is half a loaf better than no loaf?



KEY POINTS FROM THE ARGUMENT: While some justices seemed inclined to uphold the remainder of the law, others appeared open to striking the whole law down or to selectively invalidating parts of the law while leaving other provisions untouched. Justice Scalia: “My approach would say if you take the heart out of the statute, the statute’s gone. That enables Congress to – to do what it wants in – in the usual fashion. And it doesn’t inject us into the process of saying, ‘this is good, this is bad, this is good, this is bad.’” Justice Ginsburg: “[I]t’s a choice between a wrecking operation, which is what you are requesting, or a salvage job. And the more conservative approach would be salvage rather than throwing out everything.”
Source: PPAC Action: What Happened at Today’s Oral Argument



Recap of SCOTUSblog coverage

Condensed Audio: Severability of the individual mandate

Condensed Audio: Medicaid expansion argument



Why the Individual Mandate is Inseparable from ObamaCare on The American Interest




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