The Supreme Court has completed three days of oral arguments over Obamacare spread over several hours. There is no doubt that there is no shortage of opinions especially after day 2- the mandate question. I think that we can take five things away from this historic moment unfolding before our eyes based upon everything I have read here and elsewhere, conservative and liberal sites and everything in between.
1. The Supreme Court will sweep away the arguments from the first day regarding the Anti-Injunction Act regarding whether the “penalty” under the mandate is a tax. As Chief Justice Roberts said, the government was taking the position it was not a tax for AIA jurisdictional matters on Monday, but they would be arguing it was a tax on Tuesday and permissible under Congress’ taxing authority. In short, I originally believed this subject was resurrected to allow the Court a vehicle to avoid the case, essentially kicking it down the road until 2015. But after hearing the argument, they will actually get to the crux of the case. Additionally, it demonstrates the utter hypocrisy of the Obama Adminstration and the majority of Democrats who voted for Obamacare who claimed that the law did not raise taxes no matter he define that word “tax.” The government can have their cake, but they can’t eat it.
2. Some have noted the hypocrisy and spinning going on by the high-powered Democratic/Liberal spinmeisters like James Carville. Some have pointed out how transcipts have been misquoted, especially Scalia’s alleged “We’re not stupid” non-comment. Everyone heard the audio of the arguments, but somehow this statement came to be in the Liberal press. This, I believe, was done to cast the conservative wing of the Court in a bad light because they happened to have serious and pointed questions. The fact is that many Justices know the nuances of the law and have formulated a decision one way or the other and that oral arguments affect the decision of the rare fence-sitter. Hence, the questions posited by Roberts, Scalia and Alito are no more politically motivated than those by Breyer (especially), Ginsberg, Sotomayor and Kagan. Yet, the questioning by Breyer is somehow overlooked by the Liberal media and everything is focused on the conservatives. Perfect example: while listening to the audio, my wife (who has no interest in the Court) after listening to Breyer asked who “the pissy guy” was.
3. The Solicitor General, Donald Verrilli, is being slammed in the Liberal media for flubbing the argument on day 2- the mandate argument. I don’t envy the man and I think he did an admirable job. Where he ran into the most trouble, expressed by Kennedy, was the limiting principle to the power of Congress under the Commerce Clause. Specifically, if the mandate is upheld, is there no limit to Congressional power? Thus the hypotheticals about the purchase of health club memberships, American-made cars, broccoli and cell phones. What is overlooked by the Liberal press is that if the mandate is upheld, there is no limiting principle. How can Verrilli defend an indefensible proposition? He can rely on those two cases- the gun free school zones and violence against women cases- as limiting principles, but if that is all we have, then there are no limits on Congressional power under the Commerce Clause. It should be encouraging to opponents of Obamacare that Kennedy took the lead in the skepticism over the government’s argument. I would caution against uncorking the champagne just yet as Kennedy has been known to be dissuaded to the “other side” on occasion.
4. There is a lot of talk about John Roberts in the Liberal press and the Court being politicized. For example, legal talking head Jeffrey Toobin asserts that Roberts starts at the conclusion he wants and works back from there. That is, he is not the umpire he claims to be in his confirmation hearing. He further asserts that the Court is “tainted” by its Citizens United decision and, even though he was not there at the time, the Bush v. Gore decision in 2000. I could make a very good argument that both those cases were correctly decided. Regarding the Gore decision, Kennedy has asserted consistently the Court got it right and the second half the decision- the infamous 5-4 remedy that “handed the election to Bush”-was necessary to reign in a rogue Florida Supreme Court. The Liberal court asserts from the assumption that the Court is “tainted” by these decisions. A case can be made that the Warren Court was “tainted” by its Roe v. Wade decision or its Miranda v. Arizona decision. But, neither Court is tainted. Gallup polls of perceptions of the Court should not be held out as proof the Court got a decision wrong. And while it is true that Roberts tries to avert 5-4 decisions and build a better consensus, in several other cases, he has not shied from the occasional 5-4 decision. Hence, I really don’t think Roberts will, given the vital importance of this decision, allow internal Court politics interfere with the outcome. And, ironically, the Liberals are relying on this perceived sensitivity of Roberts to eventually uphold Obamacare. That says a lot since they cannot really defend the law on its merits or constitutionality.
5. The most interesting argument was about the Medicaid expansion on day 3 which produced some of the best give and take in the three days and moments of occasional humor. However, the argument did reach into a very important consititutional conundrum- the relationship between the Federal government and the states. I think it is very illustrative of the fact that an ever-expanding federal government with ever-expanding powers creates the very threats to liberty that the Founders spent so much time and debate trying to avoid. Verrilli tried to apparently redeem himself at the end of the argument by conjuring images of poor people being thrown off Medicaid and the breast cancer sufferer’s husband going bankrupt. He cloaked this in trying “to secure the blessings of liberty” language. But, Clement’s rebuttal was more telling that “securing the blessings of liberty,” as formulated by the Obama Administration, involves forcing people to purchase products and turning the concept of federalism on its head. That is, federalism exists so long as the balance tips to the Federal government. Before these arguments began, I postulated that a decision in this area had the potential to be of greater importance than the mandate resolution and checking Congressional power under the Commerce Clause. The Medicaid aspect strikes at the heart deeper Constitutional issues, indeed the very framework established to “secure the blessings of liberty.”