Update on ObamaCare in the Supreme Court Day One and Two Coverage

Today is the third and last day of arguments in the epic effort to overturn or blunt ObamaCare in the United States Supreme Court. I've been too busy to blog about it, but cannot let it go by unacknowledged. So, here are some links to what happened on the first and second day of arguments.

You can also download a PDF Guide to the issues before the Supreme Court from the Texas Public Policy Foundation.

I will post again after the third day, recapping this coverage with the addition of the third day argument.

So far, from what I have been able to gather, I am hopeful that...at the very least...the individual mandate is dead. If this is so, we will probably be able to render the rest of ObamaCare moot over the course of the next few months.


Day One

I have embedded the full audio from today's oral argument in the Supreme Court:

Download MP3

The curtain lifted this morning on the first act of the three-day drama that is the challenge to the Patient Protection and Affordable Care Act (ACA), also known (more colloquially) as just “the health care statute” and (mostly) by opponents “Obamacare.” And what a scene it was. Outside, protesters gathered with megaphones, while inside the courtroom the reporters craned their necks to spot politicians and other influential Washingtonians in the gallery.

The procedural issue before the Court in today’s argument was whether an obscure Reconstruction-era law, the Anti-Injunction Act (AIA), would bar the Court from even considering the merits of the question that most people regard as the main event of the health care litigation: the constitutionality of the ACA’s requirement that virtually all Americans obtain health insurance by January 1, 2014 or face a penalty.

The issue comes up because the AIA prohibits lawsuits to challenge a tax until the tax has actually been assessed; the penalty for the failure to obtain insurance in the health care statute is, the argument goes, a tax for purposes of the AIA.

By the time the ninety minutes of argument were over, it seemed likely that the answer to that question is that the AIA will not stop the Court from deciding the constitutionality of the mandate. But if it remains to be seen how the Court will reach this result and move on to consider the mandate on its merits.

Source: SCOTUSblog: Anti-Injunction Act oral argument: In Plain English

TODAY’S ISSUE: The applicability of the Anti-Injunction Act (AIA) as it relates to the individual mandate’s tax penalty.

KEY POINTS FROM THE ARGUMENT: Most of the justices seemed skeptical of the argument that the challenge to the individual mandate is barred by the AIA because the mandate is a tax. As Justice Ginsburg noted, “This is not a revenue-raising measure, because, if it’s successful, they won’t – nobody will pay the penalty and there will be no revenue to raise.” Justice Breyer agreed: “They called it a penalty and not a tax for a reason.”

Source: PPAC Action: Florida v. HHS - What Happened Monday

Recap of SCOTUSblog coverage
Condensed Audio of argument from SCOTUSblog
ObamaCare on trial, day 1 from Texas PolicyCast


Day Two

The full audio from today's oral argument in the Supreme Court:

Download MP3

This morning the Court reconvened to hear two hours’ worth of oral arguments on the question at the heart of the battle over the Patient Protection and Affordable Care Act (ACA): whether the government can require virtually all Americans to obtain health insurance by January 1, 2014 or face a penalty. Although this question had long been regarded as the “main event” of the three days that the Court will devote to oral arguments on the ACA, it gained even more significance (to the extent that such a thing is possible) after yesterday’s argument, in which the Justices signaled that they are not likely to let a little-known nineteenth-century law deter them from reaching the merits of today’s question. And after today’s argument, it is not at all clear whether the mandate will survive.

Source: SCOTUSblog: Today’s argument in Plain English: Will the mandate squeak by?

KEY POINTS FROM THE ARGUMENT: Several of the justices expressed skepticism about the propriety of the mandate. Justice Kennedy stated that the mandate “changes the relationship of the Federal Government to the individual in the very fundamental way.” Justice Scalia said that a law which violates the principle of limited powers cannot be “proper” within the meaning of the Necessary and Proper Clause. And Justices Roberts and Alito seemed deeply troubled by the government’s inability to articulate a limiting principle for the federal commerce power.

The Justices who seemed to favor the mandate’s constitutionality did not seem to agree on the basis for sustaining the law. Justice Breyer effectively conceded the challengers’ argument that upholding the mandate would make federal authority unlimited. Justice Ginsburg, by contrast, focused more narrowly on the costs uncompensated care have on the wider health insurance market.

Source: PPAC Action: What Happened at Today’s Oral Argument



Recap of SCOTUSblog coverage

Condensed Audio of argument from SCOTUSblog

ObamaCare on trial, day 2 from Texas PolicyCast

Interview With Mario Loyola on the Constitutionality of ObamaCare on the BattleSwarm Blog