Individual Maindate is gone as a mandate, but apparently survives as a tax

I will update when I have read the decision.  Right now there are dueling reports, but based upon one excerpt, it looks like Roberts joined the liberals to basically uphold the act.

Update:  It appears as though Roberts said the mandate was unsupported by Congresses Commerce Clause powers, but they are free to tax the crap out of us for a social(ist) program.

Update 2:  I read the decision.  I hate the decision, but Roberts may be technically correct.  He correctly held that the Federal Government cannot compel anyone into commerce.  They can regulate and tax the heck out of commerce, but they cannot force you to engage in it.  However, under their power to tax you, they can basically say that you are going to be taxed if you make a certain amount and you fail to buy insurance.  I could really go off here on Obama's many quotes about how Obamacare is not a tax, but I will not bother to rehash the obvious.  However, I agree with Roberts that Congress can Constitutionally tax the heck out of me and then spend my hard earned money in ways I think are ridiculous.  I have to be intellectually honest and consistent.  I hate an activist Court.  No one gave them the power to legislate from the bench.  My, and your, recourse is at the ballot box.  So as much as I agree with everyone who says vote your principles, I implore you to vote your principles unless the principled candidate cannot win, and in that case to vote Republican.  Romney with a Republican House and Senate will trash Obamacare.

Thank the Good Lord and our founding forefathers

For the Supreme Court.  It would appear as though they are set to strike down Obamacare.  Because when you get a government run program, such as in England, that makes decisions based upon actuarial tables and limited budgets, you get the government killing off 130,000 elderly patients every year.

An interesting but unsurprising poll about Obamacare

A new ABC/ Washington Post poll shows support for the law to at an all time low.  Only 39% of the public now support it.  I find the results entirely predictable in light of the just concluded Supreme Court arguments.  The fact of the matter is that the public tends to "educate" itself about almost all matters of importance by sound bites.  Sound bites are very easy to spin, particularly with a sympathetic MSM.  The extraordinary three day oral argument scheduled by the SCOTUS forced more Americnsa to look more closely at the great hoodwink perpetrated by Obama, Pelosi and Reid.  Lo and behold, when the public learned more facts about how the law was to work, more and more people rejected it for what it was: the largest socialization project ever undertaken by the Federal government.  The real object lesson to me is how important, and difficult, it is to really educate the electorate which has sadly become very lazy.  The good news is that it reaffirms perhaps my core belief that a democratic society that has all of the facts at hand when making decisions will generally make the right ones.

Sometimes your clients say very inconvenient things

I know this and, as an attorney, have experienced it too often.  That is why I feel sorry for Dana Lydia Kaersvang.  She works for the Department of Justice.  Yesterday she was all set to argue an appeal before the 5th Circuit Court of Appeals.  The court was hearing a separate appeal by a group of physician owned hospitals on the Constitutionality of the Obamacare law.  Only poor Ms. Kaersvang never got a chance to argue her case.  Her client, Barack Obama, had just the day before very publicly and very loudly questioned whether there was precedent for a federal court to strike down a law that the court found to be unconstitutional which had been passed by the popularly elected Congress.  So just as my sister at the bar had begun to speak, Judge Jerry Smith interrupted her and asked whether it was her client's, and thus the Attorney General's and her, position that the court had no power to hear the appeal and, if the court felt the challenge had merit, to strike down a law that they determined was not allowed by the Constitution.  She did better than I probably would have.  She cited Marbury v. Madison for the long settled principle and precedent that the courts unquestionably had that power.  Nonetheless, Judge Smith suspended the argument and directed her to file in writing either an admission by the Attorney General and his client, the President, that the court has the power to review a Constitutional challenge to the Federal statute or to explain their rationale for why it did not.  Much backtracking has ensued.

There may be some empirical evidence that the SCOTUS will toss Obamacare

Michael Evans has looked at past oral arguments in front of the Court.  It turns out that the number of questions asked/statements made by the various Justices is a reasonably predictive of how they will vote on a case before them.  In essence, if a Justice asks more questions of a counsel, he opposes the propositions made by that counsel.  The counsel at bar in the Obamacare case were Verrelli for Obama on the side of upholding the law and Clement for the 26 States with Cavin for the private business groups that opposed the law on the other hand.  Below is a chart of the number of words in questions for the various counsel by each of the Justices.  Thomas rarely says anything, ever, but we know he will vote with Alito and Scalia to throw the law out.  If form holds true then, the SCOTUS will dump Obamacare by a 5-4 vote.  And that is directly in line with the observations of most of the pundits and legal observers that I have read.

Too much to hope for?

The LA Times is reporting that the Court seems ready to strike down the entire Obamacare law:

The court’s conservatives sounded as though they had determined for themselves that the 2,700-page measure must be declared unconstitutional.

"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.

***

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.

As I have already said, I think that, once you declare the individual mandate invalid, the correct Constitutional law answer is that the entire statute must be invalidated.  I just thought non-legal constraints might force a compromise.

[Update: CNN's legal analyst has downgraded the SCOTUS review from a trainwreck for Obama to a Plane wreck.  "Hard to imagine how things could be going much worse for the Obama Administration."]

Obamacare Appeal Day 3

This morning the SCOTUS heard arguments on whether, if the individual mandate were to be struck down, the rest of the law should be declared invalid.  This afternoon the focus will turn to whether the unfunded mandates on State spending for Medicaid are permissible.  I haven't paid too much attention to the arguments yet, but have thought about both issues.  My (admittedly simple) thoughts are as follows: The whole law should be thrown out, but that may not happen.  The "savings" or "severability" clause was taken out of the House Bill when the Senate passed it, and the law eventually had no such provision.  Congress will typically put that language in a law when it is enacting legislation that has several parts, any one of which can stand on its own.  Absent such language, the Courts will generally take it as a sign that Congress intended the whole law to rise or fall as one piece because the parts were inseparably intertwined.  In this case, certain of the provisions clearly cannot go forward on their own.  Absent the individual mandate, how can you require an insurance company to insure everyone irrespective of existing medical condition?  They just couldn't pay for it.  However, other sections, such as requiring insurance companies to continue to ensure children past the age of majority could pass muster and be enacted on their own.  The reason I think they ought to be thrown out as a package is three fold.  First, Congress had severability language in the Bill, but took it out.  I take that as a clear indication that the lawmakers thought the legislation was a package deal.  Second, the Court does not have the expertise to parse the fine policy points of the legislation which is a function that is Constitutionally left to Congress.  Finally, most of the remaining provisions were bargained for compromises that never would have passed if they were not linked to the individual mandate.  The reason I think it will likely not be thrown out as a package is because it is in the genetic fabric of the Supreme Court to compromise--because it is important to avoid the appearance of being a political body and because a Justice must work with the other Justices on the country's most important issues in close quarters and for the rest of the their lives.  As to the Medicaid portion, apart from the precedent and policy reasons for the SCOTUS to strike down entire laws as opposed to parts of laws, I think it probably should not be struck down.  A State may always opt out of Medicaid and fund its own programs.  That may be expensive and therefore impractical, but I have a hard time siding with the States who claim that the Fed's coercive program is not Constitutional.  They do it all the time.  For example, a State can change the drinking age to whatever it wants, but if it does so, it will lose a LOT of money from the federal highway programs.

If I were arguing against the individual mandate in front of the SCOTUS, I would cite one good authority--Obama

Yup.  Good ol' Barack.  Back when he was running for the Democratic nomination and running against Hillary and Edwards, he seemed to be singing a different tune about the individual mandate.  I kind of like his analogy: you cannot cure homelessness by ordering people to buy a home.

My read on the SCOTUS justices

I have read the transcripts.  If you have an interest in Constitutional law or the healthcare debate I recommend that you do so, as well.  I definitely think the individual mandate is toast.  Too many pointed questions that are too good, not too esoteric or academic, and for which the Solicitor General had no good answer.  I also thought the "swing votes", and specifically Kennedy, seemed far to skeptical to turn around and issue and opinion upholding Obamacare as a legitimate exercise of Congressional power under the Commerce Clause.  I also got the impression that, if any of the Justices cross over to join the "other" side, it may be Sotomayor.  Read the transcript pages starting at p. 21.  The colloquy between Justice Sotomayor and Solicitor General Verrilli is quite interesting.  It culminates on p. 23 where the Justice flat out asks Verrelli if Congress was forcing individuals into commerce and then asks if there are any limits to that power.  Those are the two themes that the conservative wing of the court has really hammered.  And she seems legitimately troubled by them.

I also recommend reading the Kennedy questioning beginning at p. 104.  His early and often hammering of Verrelli got a lot of play yesterday, and deservedly so.  However, this latter exchange with Michael Carvin representing a private business group opposing the law may be more instructive as to how Kennedy will vote. He seems so incensed by the counter arguments that he comes very close to breaking convention and telling counsel how he will rule.  When Carvin questions Congress's method of "regulating" by forcing people to buy health insurance, Justice Kennedy actually says, "I agree--I agree that is what is happening here."  He then goes on to point out that if the "uniqueness" of the healthcare market is grounds for allowing Congress to force people into that market, they could go on and say the same thing about any market in the world of commerce.  I would be very surprised if Kennedy supports upholding the individual mandate.