Health Care Arguments Day Two: Mandate Under Fire

Today was the big show as far as the health care arguments went, and by all accounts it was not the best performance by the Obama administration’s legal team. But does that mean the case is lost?

Not by a long shot.

Predictably, Justice Scalia made it clear that he was not buying the administration’s argument that it had the power to mandate individuals purchase insurance. Sure, Justice Scalia seemed to concede, regulating the health insurance industry (an industry that is about one-sixth of the overall economy) in such a way may be a necessary exercise of government power, but is it proper?

Justice Kennedy seemed very troubled by the impact of upholding the individual mandate, particularly on “liberty” interests. But by the end of his questioning he suggested that, no matter how problematic the individual mandate may be, health care may be a unique enough to warrant unusual treatment. Justice Alito pressed the issue of whether the government could force individuals to buy burial insurance as well, reinforcing a sense of skepticism with the conservative wing that the mandate should stand.

But what does this all mean?

It means that predicting an outcome on the case based on oral-arguments is a fools game. Oral arguments are designed to iron out concerns and clear up points of confusion. Minds are usually not changed during oral argument, unless of course the judges haven’t read the briefs. And we all know that is not the case here.

But if we’re going to speculate, I’ll play the fool.  I would urge you to consider the space between Justice Kennedy’s questions and Justice Alito’s. Kennedy is a less likely “yes” vote than Chief Justice Roberts, so that last bit could be telling. Court insiders still believe the mandate will be upheld, and likely upheld in a lopsided majority, as opposed to the political press that is determined to create a constitutional crisis out of the case. Over the course of the argument Kennedy softened just a bit suggesting he’s not a for-certain no vote and, grabbing Alito’s question regarding burial insurance I think we are witnessing a Court in search of a line to draw. If they draw that line I’d expect the mandate to survive.

That’s not really a bad thing. A ruling that the federal government has the broad authority to compel individual purchases in markets if there’s some overall impact on the national economy is not necessarily a good rule of law. Instead, a narrow look at the mandate in the context of its impact on national commerce is. And that’s where the questions lead and that’s where I would expect an opinion to follow.

Tomorrow’s arguments look at the real sleeper argument in the schedule, the Medicaid expansion. Here the states are challenging the Medicaid expansion as unconstitutional because it’s too good to turn down. Should the Court agree the impact will go well beyond health care reform and impact other federal/state partnerships in such areas as public education, special education and environmental programs. The Court will also consider the severability argument–that is, if the mandate falls does the entire law.

A decision on the merits is not expected until June.

Related Stories:

What Did They Say? Today’s Health Care Arguments

Health Care Arguments Day One: Common Ground

Photo from abeeeer via flickr.


Reinhold S.

Curiouser and curiouser. So a few folks will pay a few pennies more and many more folks will have access to health care. So, the few pennies are precious to the few so as to give millions the shaft. What a kind gesture! My wife the realtor just had a customer who lost all she owned to her husband's suffering of cancer. She is now widowed and beginning from scratch. How much more insenstive can the group get that sacrifices the few pennies. Geeeez!
And about the other matter:
Article 13.
• (1) Everyone has the right to freedom of movement and residence within the borders of each state.
• (2) Everyone has the right to leave any country, including his own, and to return to his country.

Audrey B.
Audrey B.4 years ago

Obamacare will cost us more than it does now, have you actually checked out how much it will cost us per month?? Its not in my budget. I would rather keep my own insurance with a premium of 607.00 per month single person, so are you getting the idea of the cost Obamacare??
Obama is bankrupting this country, and now us personally. He needs to understand we have other bills, roofs over our heads, insurances, utilities, and fuel for out vehicles to get to work, and that is, if you are lucky enough to have a job.

Frances C.
Frances C.4 years ago

After I heard Scalia's comment about being mandated to buy BROCOLLI. Really? Stupid argument. Nothing else compares to health care, and life and death. He doesn't want to vote to uphold the President's plan, never did, and that comment shows it. Without the mandate the freeloaders will continue using the emergency room, which drives up costs. And we the taxpayers will pay for their care. I have to buy auto insurance, and I also have to buy uninsured motorists coverage because of the freeloaders who don't buy their own insurance. I am personally tired of paying for people who don't purchase their own insurance knowing that others will pay. But we have to because as a civilized Country we don't let people bleed to death on the street.

Frances C.
Frances C.4 years ago

Harriet B. You are so right. If only people would read what our wise Founding Fathers actually said..not what they think they meant. COMMON GOOD!!!!

Frances C.
Frances C.4 years ago

The right wing Supreme Judges were chosen for a specific agenda. They are ultra conservative, and vote that way. The evidence is out on the table in clear light. Anointing George W. Bush for President..never been done before. Citizens United, our Founding Fathers would be appalled. They will always vote for what the Republican Congress wants. If they overturn the Affordable Health Care Act they will go down in history as the worst Supreme Court ever. And more people will stay sick, and many will die. Republicans say they have their own plan..but they never do...during the eight years under Bush they did not come up with a plan to insure all Americans. Just the opposite, they try to undo Medicare and Medicaid which would mean less people with health care.

Carlos B.
Carlos Bagram4 years ago

So guess what? Your, “No human being is illegal; that's poppycock!” philosophical opinion is based on pure smoke and mirrors. UDHR Article 12 states clearly you are protected by the law, but it at no point gives you the right to break the law! What law is that? Read below or maybe our Constitution and laws are also poppycock in your mind;

United States Constitution- Article I, section 8, clause 4
Congress has the power to establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

United States National Law- Section 1325 in Title 8 of the United States Code,
“Immigrants can be classified as illegal for one of three reasons: entering without authorization or inspection, staying beyond the authorized period after legal entry, or violating the terms of legal entry.”

Carlos B.
Carlos Bagram4 years ago

@Reinhold S. – I am blown away by your Myopia. Out of all I wrote the only thing you could focus on were the words “Illegal Immigrant”? And it is funny how the very Articles you posted just re-enforce the classification of “Illegal Immigrant”. I am only replying to you so you don’t this mistake again since your philosophy is flawed.
The Universal Declaration of Human Rights (UDHR)
Article 12
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Marianna B M.


Robert Fitzgerald

" promote the general welfare...". That phrase sounds suspiciously socialistic, and there it is, in the preamble to our very own constitution. WTF? Were they talking about the general welfare of insurance companies, or, God forbid, the general welfare of the American people?

The mandate??? That was insisted on by Republicans and insurance companies as a compromise to get the bill passed. Now they are trying to destroy Obamacare precisely through their own mandate to the bill.

Reinhold S.

Carlos, mandatory reading for all rational human beings is the Universal Declaration of Human Rights, particularly Articles 12 and 13. No human being is illegal; that's poppycock! You might not have some people fully documented by the bean-counters in the bureaucracies, but none of humanity is ILLEGAL! That's a perversion of belief, I'd think.