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Live Blog: Supreme Court Health Care Arguments, Severability and Why Obamacare is in Trouble

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Live updates for day three of the Supreme Court oral arguments on the health care law, also known as "Obamacare." 

Check out our latest PolicyMic Debate on the Individual Mandate and weigh in with your thoughts on how yesterday went!

5:00PM – Has Paul Clement killed Obamacare? PolicyMic pundit Ryan Gorman argues that Obamacare challenger Paul Clement effectively out-argued the Obama administration, and made the best case for why the law should be striked down as unconstitutional. 

Gorman explains: If the Obama administration’s best laid plans came to fruition yesterday, Solicitor General Donald Verrilli’s defense of Obamacare would have gone as well as Paul Clement’s challenge of the bill went on day three of oral arguments.

Where Verrilli came across as flustered and unsure of his answers, Clement came across as cool, calm, and collected. Clement was as smooth as Verrilli was nervous. Clement successfully argued why the bill is unconstitutional.

“If the individual mandate is unconstitutional,” Clement said to open his argument, “then the rest of the act cannot stand.”

2:35PM – The Affordable Care Act’s Days in Court Are Over: The Medicaid arguments have officially ended after being extended for 30 minutes. The arguments are over – now the waiting game for official opinions begins. Updates on how the Medicaid arguments went coming soon.

2:32PM – Is Severability Going to End Up Saving the Individual Mandate?

SCOTUSBlog’s Lyle Denniston says that might be a real possibility. Denniston wrote that, as the Justices wrestled with the complexity of severing the individual mandate from the remainder of the law, they started showing signs of wariness to striking and separating.

Justice Scalia balked at the suggestion that the Justices parse the 2,700 page bill and determine constitutionality and severability line by line. “What happened to the Eight Amendment” asked Scalia, referencing the constitutional amendment that prohibits cruel and unusual punishment, “you really want us to go through these 2,700 pages?”

While Scalia’s comments were met with laughter, the underlying point is quite serious. Justices Scalia and Kennedy expressed doubt that Congress could address the legal concerns of the Court were the Justices to strike down the law in part or entirety.

In discussing possible congressional responses, Kennedy asked whether expecting Congress to act was a reference to “the real Congress or the hypothetical Congress.”

Is it possible that the “do-nothing” gridlocked Congress might push the Court to leave the law alone, if only to keep it out of legislator’s hands?

2:12PM – Medicaid Looks Safe: As expected, the Court seems skeptical of Clement’s Medicaid-dollars-as-coercion argument. According to the Wall Street Journal, Chief Justice Roberts told Clement that the growth of the Medicaid program over time was a consequence of states' willingness to participate in it, complete with federal strings attached. The states shouldn't be surprised when those strings get pulled, he said.

That’s quite the statement from the conservative Chief Justice. According to folks in the room, even the conservatives have been relatively quiet. Maybe they’ve finally heard enough about health care reform?

1:59PM - Medicaid Arugment Extended via @SCOTUSblog

1:52PM – Severability Argument Transcripts and Audio Available via the official Supreme Court page.

1:51PM – Medicaid arguments should be wrapping up shortly, although declaring the expansion of Medicaid unconstitutional would be truly unexpected (never been done before).

1:25PM – Another Rough Start: Coverage is beginning to trickle in from legal minds and pundits. Veteran Supreme Court litigator (and SCOTUSBlog founder) Tom Goldstein felt that the Court was “really struggling with severability.”

NPR’s Nina Totenberg said that “if there are five votes to strike down the mandate, there might be five votes to strike down the whole law.”

The Wall Street Journal noted that the severability debate seemed to fall along familiar lines, with conservative Justices looking to send the whole ACA packing should the individual mandate fall and the liberal wing of the Court saying that repeal should be the job of Congress.

For further reading, SCOTUSBlog has a solid compilation of reporting here. Medicaid arguments are currently ongoing and expected to end in 35 minutes.

1:05PM - It's Not Looking Good For Obamacare:

 

1:01PM – Medicaid Expansion and State Sovereignty: The Court is back and arguments are getting started on the question Medicaid question.

12:46PM The Court Takes Lunch: The morning session of the Court is now over. The after lunch session will complete the court's six hours of argument with an hour-long session examining the health-care law's expansion of Medicaid.

Here's a look at what to expect:

Medicaid and State Sovereignty (Arguments March 28, 1-2 p.m. EST)

The far less sexy, but equally important, element of the health care litigation focuses on conditions placed on the disbursement of Medicaid funds by the health care law.

The question presented to the Court is whether Congress has the power to condition states’ receipt of Medicaid funds upon the states’ acceptance of certain conditions that the health care law imposes.

The ACA expands Medicaid to adults earning 133% of the federal poverty level (currently $23,050 for a family of four). The overwhelming majority of the expansion will be funded by federal dollars. However, in order for states to continue receiving any Medicaid dollars, the ACA requires that states comply with this expansion in its entirety.

Aggrieved states have asserted that hinging all Medicaid dollars on mandatory compliance with the new requirement is a violation of state sovereignty. They contend that the ACA effectively forces states to make a choice: comply with the ACA’s Medicaid expansion or lose federal funding for Medicaid.

The governing law in this area arises from a prior controversial use of federal dollars as a cudgel to force state action: Ronald Reagan’s effort to raise the minimum drinking age in the 1980’s. InSouth Dakota v. Dole, the state of South Dakota challenged the federal government’s withholding of highway funds until the state raised the minimum drinking the age to match the federal age of 21, alleging a violation of the Tenth Amendment. The Supreme Court dismissed the challenge, holding that the federal government can pressure states to act by using financial incentives so long as the conditions for access to funds are reasonable and “promote the general welfare.”

The ACA’s challengers argue that the conditions placed on Medicaid funds amount to unconstitutional coercion. They argue that by making the states’ choose between their own sovereignty and what amounts to being able to maintain the health of their citizens, the federal government has forced an impossible choice which it is constitutionally prohibited from creating.

The government argues that this situation is the same as it was in South Dakota v. Dole, in that they are putting a reasonable condition on receiving federal funds – namely, complying with federal rules. They will argue that states can’t force the government to hand out federal dollars while refusing to follow the rules on how those dollars can be used. Moreover, the government will argue that the Supreme Court upheld a restriction linking drinking ages with highway dollars so surely the Court must uphold conditions linking Medicaid rules with Medicaid dollars. They will likely conclude by pointing out that Medicaid has been expanded numerous times in the past and no court has ever upheld a challenge to hinging continued funding on recognizing the expansion.

In my view, the Supreme Court will likely uphold the 11th Circuit’s opinion ruling in favor of the government and call it a day. Ever since Dole, the Supreme Court has only ever struck down two laws on Tenth Amendment grounds and neither of those concerned federal funding powers. In order to come down in favor of the ACA’s challengers, the Supreme Court would have to either re-work the test it set forth in Dole (effectively overruling it and superseding it) or do some extreme judicial gymnastic to distinguish the two cases. Moreover, the language of the Medicaid program makes clear that the funds are predicated on compliance with federal rules and that the federal government retains the right to change those rules just as states retain the right to leave the program at will. 

 

12:45PM - What Would Happen if the Individual Mandate Fell? Justice Scalia said that were the court to rip the “heart” from the bill -- the individual mandate -- he preferred to see the entire creation die, so that Congress were free to start from scratch regarding health care policy, if it so wished.

The remainder of the bill would not stand. The health care law as a whole would be over.

According to the Wall Street Journal, challenging lawyer Clement said: “You need look no further than the title of the statute” to know it all must fall. Without the individual mandate, the “principal tool,” the Patient Protection and Affordable Care Act can accomplish neither.

Celement has been widely praised for his Tuesday performance attacking the Obama health law during oral arguments. Through the arguments, Clement hammered home his contention that Congress has never required people to purchase a product as it did when it established the health insurance mandate.

12:15AM - Justice Scalia suggests there has never been another high court case where the justices have struck down the “heart” of a law, but left the rest of it in place. Kneedler, the government lawyer, says it would be an “extraordinary” move for the court to strike down a huge number of the law’s provisions that have nothing to do with the insurance mandate.

11:35AM - Who Should Pick Up the Pieces? Liberal Justice Ginsburg says that if the insurance mandate falls, the legislative branch should be the one to decide what should happen to the rest of the law.  "Congress can take care of it," she says.

The argument by the left side of the bench to defend the mandate may justify worries that the indivuidal mandate may truly be on the chopping block.

11:15AM - Liberal-Conservative Battle Lines Drawn: According to the Wall Street Journal, conservative justices Antonin Scalia and Samuel Alito have seemed to endorse health care challenger Clement's case. Justice Scalia has been responding frequently to Justice Sotomayor's remarks, pointing to what he calls "legislative inertia" as a reason not to leave the decision of how much of the law to keep to Congress. Justice Alito, meanwhile, has argued that if the judges are considering what Congress intended when it passed the legislation, they should probably consider that the legislation wouldn't have passed without its cornerstone provision, the individual mandate.

Chief Justice John Roberts has asked several questions of Mr. Clement that further the case for striking down the whole law, and echo other remarks from Justices Alitoand Scalia.

On the otherhand, Justice Ruth Bader Ginsburg has sought to argue that the most legally conservative position is to uphold the law. If the justices have to choose between "a wrecking operation and a salvage job, a more conservative approach would be a salvage job," she said.

11:00AM - Liberal Justices Slam Lawyer Arguing Against Obamacare. According to the Wall Street Journal Justice Sonia Sotomayor was first to interrupt the challengers' lawyer Paul Clement, who is arguing that the whole law should be invalidated, shortly after he began making his remarks. "Why shouldn't we let Congress" decide what to do, she asked him. "What's wrong with leaving it in the hands of people" who should be taking this decision, "not us?" she continued.

Yesterday, conservative judges hammered into the Obama administration lawyer. Are the table turning?

10:39AM – As I mentioned yesterday, the only judge to rule against the government on severability in the ACA litigation was Judge Roger Vinson, of the U.S. District Court in Florida. He was reversed by the 11th Circuit. Vinson argued that the intent of Congress was clear as the ACA did include a severability clause at one point, which was later removed. Vinson contended that showed clear intent to make the ACA rise or fall on the fate of the individual mandate.

10:28AM -  The key to severability is intent and whether the law can stand-alone with a violating portion removed. Per Alaska Airlines v. Brock: "Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law."

The presumption lies in favor of severability, meaning it is the challenger’s burden to show that the individual mandate is not severable and the Congress intended the ACA to follow it were it to be struck down.

10:20AM – Three opinions later, we’re ready to go. Time to see if the Court would be willing to throw the baby out with the bathwater.

10:15AM - Still waiting for arguments to start. The Supreme Court issues opinions on argument days, hence the delay. Severability arguments should get underway shortly.

10:12AM - Protests outside the Court continue as lively as ever. Is it me, or are the protestors getting more legally literate by the day? via @galeninstitute
Sign outside the Supreme Court, demanding that they overturn Wickard.

10:00AM - The Justices have sat down to hear the first of two arguments today. This morning's argument will run from 10:00AM - 11:30AM and address the issue of severability. The second argument, on Medicaid expansion, will be from 1:00PM - 2:00PM this afternoon.

SCOTUS Health Reform Arguments Day 3: Today the Court will hear arguments on “severability” (what the heck is that, you ask? Details below) — how much of the health care law should fall if the justices decide that the individual mandate is unconstitutional. The Justices will also consider opinions on the expansion of Medicaid under this reform, which most believe is the weakest challenge to the overall Health Reform legislation. 

How were yesterday's oral arguments for the Obama administration? A "train wreck."

And then there's SCOTUSblog:

For those interested in a great collection of coverage from yesterday individual mandate debate, check out SCOTUSblog's cornucopia of sources and analysis.

A new Gallup poll highlights the number of uninsured in different urban areas around the country: “Half of adults in McAllen-Edinburg-Mission, Texas, were uninsured in 2011 -- about 10 times the rates found in four Massachusetts metro areas. Uninsured rates tend to be higher in metro areas with large Hispanic populations.”

Severability (Argument March 28, 10-11:30 a.m. EST)

The question of severability is a tangential issue to the individual mandate in that it only becomes relevant if the individual mandate (or some other part of the law) is struck down.

In legalese, severability is the idea that if a portion of a law is ruled illegal or unenforceable, then that part is “severed” from the rest of the law, removing the portion that was struck down while retaining the rest of the law.

Most legislation has a severability clause which states a rule to that effect (i.e. if any part of this law is found unconstitutional, the rest of the law remains unaffected). However, health care reform was conspicuously lacking a severability clause, making opponents argue that if the individual mandate is struck down it cannot be severed from the rest of the law. This would mean that if the individual mandate were ruled unconstitutional then the entire law, by extension, would be ruled unconstitutional with it. This would effectively wipe the law from the books, forcing Congress to either repass a constitutional version of the law or immediately start rolling back programs already implemented and shutting down future implementation programs.

The government argues that severability clauses are not required and the judges almost always understand that the common law principle of severability persists even without express language to that effect. The government contends that the Court should understand the law as implicitly including a severability clause and conclude that the rest of the law must remain untouched should the mandate fail constitutional scrutiny.

However, even if the government were to carry the day on this question, it would be a pyrrhic victory at best. Politically, this may be an awful outcome for the Obama administration because eliminating the individual mandate would cut the revenue source funding the law without actually eliminating the law. This means that something would have to be done to address the budget gap, forcing the president to either pass a constitutional version of the mandate (if that is even possible) or forcing him to ask for Congress to repeal the law so as to avoid massive cost burdens.

It is unlikely that the Justices will go so far as to declare the lack of severability destructive to the whole law. Courts have a long tradition of treating severability as an accepted legal truth that doesn’t necessarily need to be spelled out in each law. Expect this question to get short-shrift in the opinion, especially since it would require an invalidation of the mandate to even come up for discussion.

Tuesday Takeaway - The Individual Mandate's Rough Day in Court

Now that the dust has settled on what will be remembered as an historic day of legal argument, I’d like to give a few of my thoughts on the day.

First and foremost, while the negative reactions of many pundits to arguments today may have been a bit hyperbolic, I do believe that the individual mandate appears to be standing on shakier ground than ever before.

The conservative Justices hammered Solicitor General Donald Verilli on what exactly the limit on government could be if they were to uphold the mandate as constitutional and his answers seemed to come up short for their liking.

That’s not to say that Obamacare is dead, far from it. The Court’s more liberal Justices (Ginsburg, Breyer, Sotomayor, and Kagan), while occasionally critical, seemed to be on board with giving the mandate a constitutional thumbs up. Justices Ginsburg and Breyer actively threw lifelines to Verilli to give him reasonable outs from the conservative barrage.

But a Supreme Court majority needs five votes to carry the day and it appears that, just as many times in the past several years, the deciding voice will be that of Justice Anthony Kennedy.

If today was any indication, then Justice Kennedy is very skeptical of the mandate’s legitimacy at best. “The reason this is concerning is because it requires the individual to do an affirmative act,” said Kennedy, “that is different from what we have in previous cases and that changes the relationship of the federal government to the individual in a very fundamental way.”

Kennedy constantly asked Verilli to explain where the limits of government power would stand if the Court upheld the ACA, seemingly in search of a limiting principle he could massage into a majority opinion. It’s difficult to say that Verilli truly gave him one.

On the other side, Paul Clement delivered a masterful argument that slammed the government on the fact that they were trying to play hide-the-ball with what upholding the individual mandate actually meant. "Congress when it passed the statute...justified the mandate as a regulation of the economic decision to forgo the purchase of health insurance,” argued Clement, “[t]hat is a theory without any limiting principle.”

My best guess is that the split currently sits at 4-3 in favor of upholding the individual mandate, with the liberal wing in favor and Justices Scalia, Thomas, and Alito opposed. Justice Kennedy and Chief Justice Roberts were the only two seemingly in search of a middle-ground today but that in no way ensures that they will vote in favor of the mandate come decision time.

With the results of today’s argument raising legitimate concerns about the mandate’s survival, tomorrow’s argument on severability will take on a more urgent air. If the Court decides to strike down the individual mandate, tomorrow’s questions should give us an indication of whether they plan to send the rest of the ACA packing with it. 

5:14PM - The Semantic Problem

If we were to roll back the clock roughly two years, to the final days before the Affordable Care Act’s passage, we’d see a political fight concerning the final details of health care reform that would set the stage for the legal fight currently before the Supreme Court.

The Obama Administration, in the last inches of a decades long race to reform health care, wanted to avoid the politically toxic language of creating a “health insurance tax.” Instead, they opted for framing the incentive as a penalty, consciously replacing the word “tax” with “penalty” in the closing days of the bills passage and setting the stage for the legal showdown this week.

When asked whether the individual mandate was a tax, President Obama told ABC News' George Stephanopoulos that he “absolutely reject[s] that notion.”

That two-year old political fight over whether the ACA would be funded by a “penalty” or a “tax” has snowballed into the basis of the legal argument the Court is faced with today – namely, does Congress have the power to penalize people for not participating in commerce?

There isn’t too much dissent remaining around the idea that tax breaks are constitutional. Congressional power to incentivize behavior or give handouts to special interests via tax deductions is the bread and butter of congressional kickbacks and social engineering.

The individual mandate was originally written as a tax but then later re-written as a regulation. In fact, the language is abundantly clear that the fee is going to be collected in the exact same way as a tax, despite not citing to congressional taxing power to justify its inclusion. This tax-like function is the centerpiece of the government’s argument as they contend that this is merely an exercise of congressional tax power by another name.

So is this just a game of semantics?

Yes and no. This is semantic but words matter, especially in law.

Congress’ taxing power is quite broad and there isn’t much debate around the idea that were the individual mandate written to function as a tax incentive or deduction, the law would be constitutional under Congress’ authority to levy taxes.

However, switching out the words now, two years after the fact, won’t be enough. As written, the law includes 10 detailed findings meant to show that the ACA regulates commercial activity, attempting to draw protection from the Commerce Clause. Nowhere does Congress cite its taxing power as a source of authority.

Moreover, as the lawyer for the challengers argued, there is an important difference between a general tax and a direct tax and contended that taxing someone for not having something is not a legal exercise of the tax power. 

As federal district judge Henry Hudson pointed out when striking down the individual mandate, “the term 'penalty' was substituted for the term 'tax' in Section 1501(b)(1). A logical inference can be drawn that the substitution of this critical language was a conscious and deliberate act on the part of Congress.”

The Justices were acutely aware of this fact in argument today. It remains to be seen whether the political decision to dub this a “penalty” and not a “tax” will be the unseen iceberg that sinks health care reform entirely.

2:43PM - Where is the Limit on Limited Government?

“Could you express your limiting principle as succinctly as you possibly can?” asked Justice Samuel Alito of Solicitor General David Verrilli. “Congress can force people to purchase a product…if what?”

Justice Alito’s question distills the concerns of the conservative Justices and ACA opponents perfectly. As our panel of experts discussed in this week’s PolicyMic Debate: if the individual mandate’s ability to force you to buy health insurance is constitutional, are the enumerated limits on federal government effectively dead?

SCOTUSBlog’s Lyle Denniston made clear that this question of limiting principles is where the decision on Obamacare will hinge. “If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate,” writes Denniston, “the mandate may well survive.”

But if Congress can force you into commerce in order to then regulate that commerce, where is the limiting principle?

The government argued that federal power stemmed from the ability to enact comprehensive schemes and pre-empt outside interference with those schemes by way of the Commerce Clause. If the government was regulating the interstate commerce of the health care system, then it had the power to prevent people undercutting or handicapping the system by strategically avoiding it.

Paul Clement, lawyer for the 26 states challenging the individual mandate, argued that the government’s assertions hardly create a limiting principle. Clement argued that forcing people into commerce was unheard of prior to health care reform and allowing it to stand would start the slide down the slippery slope. “[O]nce you open the door to compelling people into commerce,” contended Clement, “you are not going to be able to stop that process.”

For their part, the liberal wing of the Court defended the government’s asserted limiting principles. Justice Breyer argued that “the greatest limiting principle of all…is the limiting principle derived from the fact that members of Congress are elected from States and that 95 percent of the law of the United States is State law.” Justices Kagan and Sotomayor also pressed Clement on distinguishing the limiting principles the government presented.

Whether five justices were convinced that a limiting principle exists remains to be seen. SCOTUSBlog’s twitter feed called Clement’s argument “the best argument I’ve ever heard” and declared that the “mandate is in trouble.” The question, it seems, is whether Justice Kennedy agrees.

2:06PM - Do Oral Arguments Matter?

Here is a thoughtful piece from The Washington Post’s Ezra Klein asking whether oral arguments actually matter.

Oral arguments, particularly at the Supreme Court level, are rarely as telling as many pundits would like them to be. There are countless examples of Justice’s being critical of an issue at oral argument and ruling the complete opposite way come opinion time.

If anything, oral arguments are an opportunity for the Justices to argue with one another through the kabuki theater of formal proceedings. Advocates become merely sounding boards off which Justices lobby one another, bouncing questions back and forth to one another.

This is caused, perhaps counter-intuitively, because there is very little actual debate and argument behind the closed doors of the Court. Conferences (where the Justices vote on cases) are highly formalized affairs where individual Justices generally read monologues rather than engaging in legal back and forth with their colleagues. This leads many Justices to bring their questions to oral arguments, forcing the advocate to argue their position to their co-Justices by way of directed questions.

In reality, Justices rarely waiver in their positions at oral argument, as both Jeffrey Toobin and Erwin Chemerinsky told Klein. “Most Justices say their minds are changed by oral arguments a handful of times -- fewer than five -- per year,” said Toobin. “In my experience, the higher profile the case, the less oral arguments matter.”

This makes the apparently undecided views of Justices’ Roberts, Alito, and Kennedy even more important as a single one of their votes could change the outcome of the case.

It’s important to remember that Justices have already read through the over 140 briefs filed by both the litigants and interested parties, along with all of the internal briefing, memos, and dialogue amongst themselves and their legal clerks.

So while pundits (myself included) may seek to make readings based off the questions posed by the Justices today, remember that, at the end of the day, all the matters is the opinion coming in late summer.

1:30PM - Transcripts and Audio Available

For those of you wanting a first-person experience, the Supreme Court has made the official transcript and audio available at their website here (opens in a new window).

1:29PM - Oral Arguments Conclude and the Analysis Begins

Scholars can put a period in the history books; the Battle of the Individual Mandate is over. The Supreme Court has officially concluded oral arguments over the individual mandate after two hours of argument this morning, one hour from the government and thirty minutes from both challengers.

The Supreme Court won’t issue an official decision until late summer but pundits and legal scholars have already begun reading the tea leaves of oral argument. Jeffrey Toobin, legal expert for CNN and the New Yorker, said that the government blew it today. “This was a train wreck for the Obama administration,” said Toobin, “this law looks like it’s going to be struck down.”

Despite the pessimism by Toobin, it is unclear whether conservatives will be able to muster the five votes necessary to throw out the mandate. The four liberal-leaning justices (Souter, Kagan, Sotomayor, and Ginsburg) seemed to be leaning in favor of upholding the law and both Chief Justice Roberts and Justice Alito seemed to be on the fence alongside historical swing-voter Justice Kennedy. It would only take one more vote to uphold the individual mandate’s constitutionality if all four liberal Justices rule as expected.

Tomorrow the Court will hear arguments on severability and Medicaid expansion but we expect most of the attention to stay on the individual mandate. 

Update: Tuesday: The Supreme Court hears its second day of health care arguments on Tuesday – two full hours – taking up the constitutionality of the minimum care provision or "individual mandate." Tomorrow the justices will hear arguments on whether the rest of the health care law can remain intact if the individual mandate is ultimately ruled invalid.

Trouble For Obamacare? According to the Los Angeles Times, the conservative justices ripped the Obama administration's top lawyer before he could get three minutes into his defense of the mandate, accusing the government of pushing excessive authority to require Americans to buy anything.

"Are there any limits," asked Justice Anthony Kennedy, one of three conservative justices whose votes are seen as crucial to the fate of the unprecedented insurance mandate.

Chief Justice John G. Roberts Jr. suggested that the government might require Americans to buy cellphones to be ready for emergencies. And Justice Antonin Scalia asked if the government might require Americans to buy broccoli or automobiles.

"If the government can do this, what else can it ... do?” Scalia asked.

Big Quotes: 

“The federal government is not supposed to be a government that has all powers,” Justice Antonin Scalia said early in today’s two-hour argument, Bloomberg News reports. “It’s supposed to be a government of limited powers.” 

Justice Anthony Kennedy said the requirement to buy health coverage is telling an individual “that it must act.” He said, “That changes the relationship of the government to the individual in a fundamental way.”

The Wall Street Journal reports that:

Justice Ginsburg has cited a friend-of-the-court briefing pointing to uncompensated care in Maryland that raised consumers’ costs by 7% to further the case that requiring people to carry a way of covering their health care is different from forcing them to buy food. Uninsured people are passing their costs on to others, she suggested, and that’s why Congress can regulate them.

A report from Bloomberg TV’s Meghan Hughes of the Solicitor General’s argument:

Justice Scalia interrupted right out of gate. Chief Justice Roberts followed soon after. Justice Alito said “the mandate is forcing these people to provide a huge subsidy to insurance companies.” Justice Kennedy said that “I understand we must presume laws are constitutional,” but that the government has a heavy burden here.

Justice Scalia raised the challengers’ point, asking if the government can compel Americans to buy broccoli. “You’re not regulating health care. You’re regulating insurance,” he said.

[The PolicyMic experts battle royale debate on health care is here.]

What does all this legalese mean? Here's a synopsis from PolicyMic pundit Mark Kogan

The Individual Mandate (Arguments March 27, 10 a.m. - 12 p.m. EST)

At the heart of health care reform lies the individual mandate, which makes it so that individuals must purchase health insurance or else face a fine assessed by the government.

The question before the Court will be whether Congress has the power under the Commerce Clause to require that individuals purchase health insurance.

The Commerce Clause states that “the Congress shall have power…to regulate commerce” among the states and “to make all laws which shall be necessary and proper” to execute that power. The ACA requires that individuals obtain “minimum coverage” or else pay a fine each year that they fail to obtain sufficient coverage.

Challengers have asserted that this mandate unquestionably violates the Commerce Clause. They contend that being forced to participate in interstate commerce is fundamentally different from having your voluntary participation regulated. They further argue that the government’s attempt to blur the line is intentionally misleading and that the Court should draw a clear line between regulating commerce and forcing someone to engage in commerce so that the government can then regulate it.

The government asserts that everyone, by default, will engage in commerce in the area of health care at some point in their lives, whether they are insured or not. The government contends that the power to regulate in the area of health care naturally follows from that inevitable participation because it merely regulates how an individual participates, not whether they do.

Opponents of the law argue that if the Court upholds this mandate then there is nothing stopping the government from mandating that we purchase cars from GM or buy broccoli every month, as these two are actions that fall under interstate commerce and theoretically everyone uses some form of transportation and everyone eats. The challengers contend that the government has never been allowed to force someone into commerce and that allowing it would effectively wipe out any limitations on federal power that the Commerce Clause may still impose.

The government counters by saying that everyone participates in the health care market and that because health care is such a massive part of our economy (roughly 16% of GDP), the ability to regulate how the commercial market functions is necessarily covered by the Commerce Clause.

Courts below have split 3-1 in favor of upholding the individual mandate, including several opinions by conservative judges. However, the outcome of the individual mandate question at the Supreme Court level is anyone’s guess. The decision will likely be determined by which plurality of Justices can win the horse-trading game and convince a waffling judge or two to sign onto their opinion. Whichever way the Court comes down, expect the opinions to be complicated, nuanced, and narrowly written – bright line rules will be hard to come by with such a divisive and politically contested issue.

9:55 a.m. Live stream video from outside the Supreme Court while it hears oral arguments on the health care law today can be found here. Audio from within the court will be released later today.

9:40 a.m. Circus Scenes From SCOTUS


Monday 5 p.m. The full audio of Monday's oral arguments can be found here.

2 p.m. Santorum Attacks Romney Over Health Care: In an interview on MSNBC Monday morning, Santorum campaign spokesman Hogan Gidley said that the former Pennsylvnia senator is holding a campaign event on the steps of the Supreme Court Monday afternoon because “this is the issue in the upcoming November election.”

“This is where the fight is happening, at the Supreme Court,” Gidley said. “And there’s a reason Mitt Romney isn’t here, and that’s because Mitt Romney basically wrote this piece of legislation. . . Mitt Romney’s not here. Well, he can’t be. He’s not credible on this issue.”

12:40 p.m. Rick Santorum, speaking in front of the Supreme Court, says "Obamacare the most important issue of our time." His speech was short. He used the high profile opportunity to attack Obama and Romney. Santorum said Romney was "uniquely disqualified" to talk about health care reform.

12:30 p.m. Rick Santorum is about to hold a campaign event in front of the Supreme Court. See @MylesNMiller latest photo

11:55 a.m. Today’s argument is over (ADHD at SCOTUS, anyone?). Today's arguments focused on the the Tax Anti-Injunction Act, a legal loophole that could allow SCOTUS to delay making a decision on this issue. Read a full primer on the Anti-Injunction Act here.

11:45 a.m. In U.S. Solicitor General Donald Verrilli’s turn to address today’s issue, the Wall Street Journal reports:

Justice Samuel Alito jumps in and appears bothered by difference between what the federal government is arguing Monday versus what it will argue Tuesday.  He notes that for jurisdictional purposes, the government is arguing the insurance mandate penalties are not a tax.  But he points out that on Tuesday, the government will argue that, for constitutional purposes, the penalties do function like a tax. Mr. Verrilli responds that the arguments are different because the two legal questions are different.

11:41 a.m. Justice Ruth Bader Ginsburg: “This is not a revenue-raising measure,” she said. “If it’s successful, nobody will be paying the penalty and there will be no revenue to raise.”

11:38 a.m. CNN is reporting that 110 members of the public — almost double the initial estimate — were admitted to watch Monday’s arguments, along with 117 credentialed members of the media.

11:05 a.m. The Supreme Court has begun hearing arguments, but as the NYT reports, "On three mornings this week, a select group of reporters, lawyers and observers will crowd into the court’s august chamber as the nine justices grill the advocates in a case freighted with huge legal and political implications. No Twitter messages will be allowed. No one in the room will be permitted to make a telephone call. There will be no BlackBerrys or laptops or iPads to blog with."

10:10 a.m. CNN's Lisa Desjardins tweeted that there are more supporters than opponents in front of the court. Further, the supporters even brought a band!

10:05 a.m: Rick Santorum will be protesting in front of the Supreme Court at 12:15 p.m.

Monday Background: This morning at 10 a.m., the Supreme Court will open oral arguments on the health reform law. The hearing will last six hours and stretch over three days, the longest arguments in 45 years.

This will be the most controversial legal question in a generation, as the Court examines whether the Patient Protection and Affordable Care Act (ACA), also known as “Obamacare,” survives a myriad of constitutional challenges.

Ahead of the arguments, a new CBS/New York Times poll finds 47% of Americans "disapprove" of the law, including 30% who "strongly disapprove." Thirty-six percent of Americans support the law either "somewhat" or "strongly." 

As PolicyMic pundit Mark Kogan explains (Obamacare Heads to the Supreme Court: Here's What You Need to Know), the case comes to the Court as an amalgamation of several distinct legal challenges from multiple circuit courts of appeals. The primary challenge, HHS v. Florida, comes to the bench courtesy of 26 state attorney generals who have filed suit asking the Supreme Court to declare the law unconstitutional on the grounds that the “individual mandate” violates the Commerce Clause. A secondary case, National Federation of Independent Business v. Sebelius, challenges the constitutionality of conditions placed on state receipt of future Medicaid funds by the ACA. Both cases will be held concurrently.

The Supreme Court does not allow cameras in chambers, and only audio will be provided.

 
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