Patterico's Pontifications


Obamacare Arguments: Supreme Court Seems Likely to Decide the Case

Filed under: General — Patterico @ 10:28 pm

I am listening to the audio now, but it’s hard to get too interested tonight, because today’s arguments (the first day of three days of argument) were mostly about whether the Justices are going to decide the case — and just about everyone seems to agree that they will.

But down in the weeds, the argument was over whether the individual mandate is a tax (the federal government says it is), and that has some relevance to the statute’s constitutionality.

Ilya Somin has the rundown, saving me the grief:

Today’s Supreme Court oral argument transcript suggests that many of the justices, including at least three of the liberals, are skeptical of claims that the individual mandate is a tax. This is important not only for today’s argument about the applicability of the Anti-Injunction Act (which probably does not apply if the mandate penalty is not a tax), but to tomorrow’s argument about the constitutionality of the mandate. The federal government has argued that the mandate is constitutional because it is an exercise of Congress’ power under the Tax Clause. Lower courts have almost uniformly rejected this constitutional tax argument, and today’s questioning suggests that the Supreme Court is unlikely to accept it either.

Things should get interesting tomorrow.

29 Responses to “Obamacare Arguments: Supreme Court Seems Likely to Decide the Case”

  1. Not knowing much about law, I still can’t believe but that the mandate toast.

    Separable is a muddle, but if AIA doesn’t apply then can the mandate be separable if Congress did not bother to make it so.

    Obama will sell this as a failure of the GOP-controlled Congress.

    gary gulrud (d88477)

  2. If you want to listen to the arguments, follow the link on my name.

    Aaron Worthing (73a7ea)

  3. Hint: when even Breyer and Ginsburg can see thru your bogus “the language of the law says it’s a fine, but it’s really a tax” deception, then all you’ve got left is “the commerce clause allows the Congress to mandate what all adult citizens must buy” argument. And that one ain’t gonna fly.

    Icy (901d6d)

  4. I’m betting the b.s. dicta will be knee deep as they twist and spin trying to justify yet another totally unconstitutional law.

    They’ll be babbling about fires in crowded theaters, and emanations, and penumbras, and incorporation doctrines, and all kinds of silly nonsense.

    Dave Surls (46b08c)

  5. #4


    Is there a video game clause in this monstrosity that I’m not aware of?

    Betcha even Nancy Pelosi doesn’t know about that one.

    Dave Surls (46b08c)

  6. I wouldn’t read too much into the liberal justices not buying the ‘tax’ argument. They’re going to vote to uphold the law (note that not a single article on how the vote will end up has the liberal justices doing anything but voting in favor of Obamacare).

    Perhaps their public skepticism towards the government’s argument is nothing more than a ploy at showing how evenhanded they are… or perhaps their desire to ratify Obamacare this year in hopes that this would boost Obama’s chance of winning re-election… or perhaps their desire to not delay the issue to a point where a GOP President might have time to replace a liberal justice.

    Pity the fool who thinks judges (and especially those on the Supreme Court) rule on any basis other than on getting the outcome they desire. Decide first, rationalize later.

    steve (254463)

  7. “[T]he argument was over whether the individual mandate is a tax (the federal government says it is.”

    Actually, the admin is trying to argue both sides of the question, depending on the issue.

    “General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax,” Justice Samuel Alito said.

    Karl (6f7ecd)

  8. ‘It’s a floor wax and a food topping’

    narciso (83bb81)

  9. I don’t think the skepticism over the applicability of the AIA translates into skepticism on the mandate in the Affordable Care Act. As Karl notes, the administration is arguing that it’s not a tax for purposes of the AIA, yet the enactment of a penalty that is not a tax is covered by the taxing power of Congress. I could see the liberal justices going for that argument, since a) it’s the result they want and b) it appeals to the tendency in liberal attorneys and judges to equate complexity of reasoning and pervesity of result with superior intellect.

    Bud Norton (29550d)

  10. Actually, the issue in question is whether the suit brought before the Supreme Court is “ripe” or whether it is premature. A lawsuit concerning a tax cannot be filed until AFTER it has been paid. so if it is a tax, then the lawsuit is premature and the SCOTUS can punt and dismiss the case on issues of standing because nobody has paid the tax….yet.

    Rorschach (c5574d)

  11. JUSTICE GINSBURG: Why would somebody not

    18 choose to obtain it? Why — that’s one puzzle to me.

    19 There’s this category of people who are Medicaid

    20 eligible; Medicaid doesn’t cost them anything. Why

    21 would they resist enrolling?

    MR. KATSAS: I — I don’t know, Justice

    23 Ginsburg. All I know is that the difference between

    24 current enrollees and people who could enroll but have

    25 not is, as I said, on the — is a $600 million delta.


    1 And -­


    JUSTICE GINSBURG: But it may be just that

    3 they haven’t been given sufficient information to

    4 understand that this is a benefit for them.

    Proof positive that some people cannot understand the concept of limited government that so many people hold dear. The concept of not wanting a hand out just never occurs to this woman.

    How is it possible that she was the best we could find to be a Supreme Court Justice? Wasn’t there a law clerk who failed the BAR exams that we could have appointed instead?

    People routinely choose not to enroll in government programs for a variety of reasons. What those reasons may be are literally none of her business.

    JUSTICE BREYER: Basically it begs the

    1 difference — language is relevant, there are a lot of

    2 relevant things. But one thing that’s relevant in my

    3 mind is that taxes are, for better or for worse, the

    4 life’s blood of government.

    No, Justice Breyer, the consent of the governed is governments lifeblood. Once you lose that, the government will not long stand. And if you let this travesty of a law stand, then you will lose that consent. Just remember, it is the rural people and the conservatives who own most of the guns.

    Just sayin’.

    Jay H Curtis (804124)

  12. the SCOTUS can punt and dismiss the case on issues of standing

    They do seem to like this argument. Remind me again how nobody has standing in any court to challenge eligibility of a Democratic candidate and nobody has responsibility for verifying that eligibility?

    Jay H Curtis (804124)

  13. Talk about the liberals’ disposition and conclusions is pointless. Not a one will be remembered.

    Anthony Kennedy will be remembered and his legacy will be federalism. The major opus impends.

    gary gulrud (1de2db)

  14. Breyer is actually laughing at the Sol. gen’s case. that is not a good sign for Obamacare…

    Rorschach (c5574d)

  15. ***
    Remember–this is the same Supreme Court that long ago decided that the Black slave Dred Scott wasn’t a person. That he was a thing==kindof like a cow–that could be owned by another person!
    And that a farmer growing wheat on his own land for his own use was somehow in violation of the laws of commerce with other states. As he planned to feed his chickens and make some money through his own efforts.
    I don’t hold out a lot of hope for a constitutionally rational decision from SCOTUS. I expect another sellout of the American People for the Comrade Obama Regime’s benefit.
    John Bibb

    John Bibb (193f6e)

  16. CNN is today reporting the summary execution of Obamacare:

    You know who this helps.

    Just kidding, IHNC.

    gary gulrud (d88477)

  17. Sounds like Kennedy’s a vote to throw out the mandate.

    Gerald A (91f731)

  18. OT, but today John Taylor is addressing Congress on the Feds alarming appetite for new powers announced post fact.

    For example, in addition to your worthless debt Ben is now buying Europe’s:

    And he has fallen behind Europe and Japan in creating money out of thin air.

    We are already thoroughly hosed.

    Anyone point out from the bench yet how inadequate the mandate is at covering the cost as taxation?

    Does the Constitutional right exist for government to totally bugger the country with impunity?

    Corzine is known to have ordered $200 Billion of customer accounts vaporized.

    We should be shooting bastards indiscriminately not paying for show trials. Law, order and the public good is shot to h*ll.

    gary gulrud (d88477)

  19. Did anyone watch O’Reilly last night? He interviewed a woman from some organization that sounds like they are constitutional experts.

    He kept challenging her to name an instance where the federal govt. has been able to compel someone to do something. After some apples and oranges examples like purchasing car insurance which O’Reilly shot down, a frustrated O’Reilly kept accusing her of being evasive and she kept denying it. Finally she said that some 1792 law required everyone to own a musket.

    She also insisted that the Obamacare mandate doesn’t actually force anyone to purchase insurance because they could pay the fine instead. He was really hammering her on the absurdity of that claim.

    That lady should get a job in the Ministry of Truth.

    Gerald A (91f731)

  20. Gerald, it really bothers me that whoever names the next two supreme court justices… he’s going to be someone who thought this ridiculous Obamacare idea was constitutional. Newt’s thought an ind mandate was constitutional, Obama clearly does, Romney encouraged a fed mandate in 2009. They all agree with the insane idea that it’s constitutional for the federal government to do this.

    And the only candidate who really recognized the tenth amendment couldn’t even name the current justices.

    We are living in the dark ages.

    Of course Obamacare is unconstitutional Of course my right to choose my health insurance or not choose any at all is my private affair and a right retained by the people. Of course my mere existence in this country doesn’t justify the government forcing me to contract with a provider.

    What’s really sad is that Obama never could have passed his single player socialism. but if he can attempt Obamacare without the ind. mandate, it will probably lead to one.

    Dustin (330eed)

  21. As we depended on fact in point, the Justices peered deeply into Obamaneycare’s entrails:

    gary gulrud (d88477)

  22. Good news and bad news: The decision rests with Kennedy. Bad because he isn’t very conservative; good because he strays in the direction of liberty, which this infringes. If this thing is upheld, the narrowness of the ruling and the limitation to health care will be striking.

    Kevin M (bf8ad7)

  23. My real peeve, though, is that the MSM keeps acting as though the conservatives are close-minded ideologues and the liberals on the side of the angels, when the liberals showed no interest in the plaintiff’s arguments today and Kennedy and Roberts (and to some extent Alito) at least explored the government’s case.

    MSM line:

    5-4 to overturn: more evidence of the corrupt right-wing cabal on the court.

    5-4 to uphold: the court overcame the corrupt right-wing cabal to find a just, bipartisan and courageous path to social justice.

    Kevin M (bf8ad7)

  24. Remember–this is the same Supreme Court that long ago decided that the Black slave Dred Scott wasn’t a person.

    — Really? Sorry, but not even Scalia is THAT old.

    Icy (e73414)

  25. Gerald A wrote “Finally she said that some 1792 law required everyone to own a musket.

    And evidently the Constitutional law expert didn’t notice that there are specific provisions in the Constitution regarding Congress’ powers over the militia.

    SPQR (26be8b)

  26. Some of Clements thinking:

    Says the tax/penalty issue is not one on which the mandate stands or falls. That the Filburn wheat case affected interstate commerce whereas purchase of insurance or no does not.

    Sooo, Reid and Pelosi sepuku party. Ogabe not to blame naturally, just blowin’ in the wind like a certain contender for his throne.

    gary gulrud (d88477)

  27. What I love about the Government’s argument is that since eventually every needs care, they need insurance b/c if they don’t have it then those who have insurance must pay for them in the form of higher prices.

    They miss the presupposition that health care professionals must provide care for all regardless of ability to pay. I mean, seriously, when did the Hippocratic Oath become law?

    Not only that, this incorrect assumption confuses a requirement mandated via DOH/CMS for mandatory Emergency Room Care IN EXCHANGE FOR their allowing ridiculously higher Hospital pricing on all services along with the cascading effects this causes.

    Where you think the $10 aspirin comes from? Hospitals charging more to cover for all the free stuff they need to provide.

    But if you got rid of the mandate and allowed hospitals to do as they please …………

    Bill (af584e)

  28. I also hope the supreme court reigns in the Commerce Clause as well as better defines the “General Welfare” Provision which have been used and abused by Congress, POTUS and the Courts to create Federal Locusts sucking out the very essence of this nation.

    General Welfare should not mean one man’s right is not another man’s obligation via Fed Govt dictate.

    Bill (af584e)

  29. “Proof positive that some people cannot understand the concept of limited government that so many people hold dear.”

    Ginsburg is a disgrace even by the standards of the SCOTUS.

    And that’s about the lowest standard there is.

    Dave Surls (46b08c)

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