Today was the last of three days of oral argument before the United States Supreme Court. Case number 11-393, National Federation of Independent Business v. Sebelius and 11-400, Florida v. Health and Human Services Department, tests the constitutionality of the Patient Protection and Affordable Care Act passed by the United States Congress and signed into effect by President Obama on December 24, 2009. The law, popularly (or unpopularly) known as "Obamacare," so identified is it with the president, was lauded here, as was the president, upon enactment. It is the most significant piece of social legislation in fifty years.
The law has not been lauded in oral argument before the Supreme Court. Based on their judicial histories and questioning of the lawyers the nine justices seem split on party affiliation of the president who appointed them. Those who were appointed by Republican presidents seem inclined to strike down the law, those appointed by Democrats to uphold it. This has surprised many close observers of the Court who had predicted approval by a decisive majority.
Yesterday's arguments revealed deep reservations by half of the court on whether the federal government had the power under the Commerce Clause of the Constitution to enact legislation mandating, as Obamacare does, individuals to pay for insurance or pay a penalty. The concerns about this Commerce Clause power are captured by a question asked by Justice Anthony Kennedy: "Can you create commerce in order to regulate it?" Solicitor General Donald B.Verrilli, speaking for the government, answered, "That's not what's going on here, Justice Kennedy." Nor does it seem to this legal non-scholar and non-close, non-observer of the Court to be what is going on here but it seemed that way to Justice Kennedy--and Justice Scalia and Justice Alito and Chief Justice Roberts (Justice Thomas didn't ask any questions, seldom does, so predictably conservative is he.). That's a 5-4 majority against the law right there.
Today's arguments reinforced the impression from yesterday that the law was in trouble: they focused on whether the law could be saved if the "individual mandate" (to buy or be fined) was struck down. Justice Scalia, who thinks as a hatchet cuts, said, "My approach would be to say that if you take the heart out of this statute, the statute's gone." That would be unfortunate for the American people in the opinion here.
It would also be unfortunate for President Obama. It is called "Obamacare" after all and this is an election year. If this signature piece of legislation from the president's first term is deemed unconstitutional it hurts his chances for a second term.
The law has not been lauded in oral argument before the Supreme Court. Based on their judicial histories and questioning of the lawyers the nine justices seem split on party affiliation of the president who appointed them. Those who were appointed by Republican presidents seem inclined to strike down the law, those appointed by Democrats to uphold it. This has surprised many close observers of the Court who had predicted approval by a decisive majority.
Yesterday's arguments revealed deep reservations by half of the court on whether the federal government had the power under the Commerce Clause of the Constitution to enact legislation mandating, as Obamacare does, individuals to pay for insurance or pay a penalty. The concerns about this Commerce Clause power are captured by a question asked by Justice Anthony Kennedy: "Can you create commerce in order to regulate it?" Solicitor General Donald B.Verrilli, speaking for the government, answered, "That's not what's going on here, Justice Kennedy." Nor does it seem to this legal non-scholar and non-close, non-observer of the Court to be what is going on here but it seemed that way to Justice Kennedy--and Justice Scalia and Justice Alito and Chief Justice Roberts (Justice Thomas didn't ask any questions, seldom does, so predictably conservative is he.). That's a 5-4 majority against the law right there.
Today's arguments reinforced the impression from yesterday that the law was in trouble: they focused on whether the law could be saved if the "individual mandate" (to buy or be fined) was struck down. Justice Scalia, who thinks as a hatchet cuts, said, "My approach would be to say that if you take the heart out of this statute, the statute's gone." That would be unfortunate for the American people in the opinion here.
It would also be unfortunate for President Obama. It is called "Obamacare" after all and this is an election year. If this signature piece of legislation from the president's first term is deemed unconstitutional it hurts his chances for a second term.
