Debbie Hellman: What I find so puzzling is that so many conservative judges in appellate and circuit courts upheld the law ... that is what I am holding my hat on ... all of those other conservatives cannot be wrong.
Dahlia Lithwick: A LOT of yesterday’s arguments was about how to unspool the parts of the bill that are already in effect if they strike it all down. It’s one of the reasons the court looked very uneasy about killing the whole thing. But I confess they looked even more uneasy about letting parts of it survive.
James Haygood: I know (think?) that the court is just supposed to look at the specifics of the case, is the mandate constitutional, etc., but do they also take into account things like whether our country should try to provide health care for everyone? How much does policy enter into it, if at all?
Dahlia Lithwick: Technically they are really just meant to look at the law and the Constitution and NOT their personal feelings about whether the poor should be covered. That said, I didn’t see much talk of law either. It was pretty inchoate policy talk, more a Poly Sci seminar than Con Law at times. That said, in the very last two minutes of his argument Solicitor General Don Verrilli made an impassioned plea that the court take all those ill people into account and afford them a kind of "liberty" from their illness that had not previously been mentioned in the case.
Ric Kidney: This ridiculous “broccoli” argument is wrong headed. The government has the right to require people do what is best for everyone. Yes, you can choose not to drive and not get car insurance but you cannot choose never to get sick or get injured. I live in California. We are required to cut the brush from around our homes—something I must pay for or do myself. The purpose of the law is not to save my house from fire, but to save the entire neighborhood. Of course the health care mandate is constitutional. It has nothing to do with the “right to have health care.” If this is the argument of the right, then they must pass a law saying those who do not pay can NEVER get health care.
Dahlia Lithwick: That's all true and more. It's not just that everyone eventually gets sick and needs health care. It’s that when they need it and they are uninsured they get it anyhow. It's like choosing not to buy a car and then getting one for free. That's what makes the market unique. But that said, the Obama admin had ONE job to do and that was answer the broccoli argument. They needed to explain a one-sentence legal limiting principle. I still maintain that Elena Kagan in her confirmation kind of articulated it when she said that if Congress tried to force everyone to eat broccoli it would be a "dumb law."
Scott Lemieux: What has always struck me is that 1) the argument that the mandate is essential to the core goals of the bill and can't be severed strikes me as right, but 2) unless McCulloch v. Maryland has been overruled while I wasn't looking that means that the mandate is plainly constitutional unless you want to argue that the federal government has no authority to regulate health care at all.
Dahlia Lithwick: I think the question remains whether what happened the last three days maps onto an actual opinion, or if it was just Scalia having some kind of liberating explosion of joy. He was so off the charts yesterday it's hard to tell. Here is the great Garrett Epps on Scalia Unplugged.
Heather Clark Wiehe: I think that people are getting way too spun up about a few hours of oral arguments. All of the Amicus briefs make excellent arguments about the actual law and its constitutionality. Whether the justices wanted to spend their time talking about policy or not, they'll still have to handle all the constitutional arguments in the briefs. This is the part of the argument we don't get to see and why I think it will be upheld.
Dahlia Lithwick: That's such a very important point. The oral argument at the D.C. circuit was similarly brutalizing and yet the court eventually upheld the ACA and did so in strong language. It's good to recall that today. That said, anyone who was in court the past three days probably has to agree that there look to be five people who desperately, desperately hate that piece of legislation .
Robert Hawks: I predict an "unexpected" backlash when the law is tossed, and millions of low-information Americans suddenly lose their insurance or find themselves in coverage hell.
Dahlia Lithwick: Not so sure there will be a huge backlash. The public doesn’t like this bill. Or, more accurately, they like some parts but really, really hate others. One thing of which I am 100 percent certain: If the public sentiment wasn't opposed to this bill the court wouldn’t be posturing about striking it down. That was the real failure of the Obama admin: they opted to try to sell the bill politically instead of constitutionally and ended up doing neither.
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Happy Constitution Day!
Too bad it’s almost certainly unconstitutional.