Individual Mandate In Trouble At The Supreme Court

To date, I have not written about the fact that Obama’s health care law is now being argued before the Supreme Court. We all knew this day was Individual Mandatecoming. We also knew the crux of the arguments would center over the individual mandate that is the backbone of the health care law. After getting the preliminaries out of the way, the Justices made it fairly clear that was the case. Most of their questions centered around the individual mandate and from those questions, it seems possible there is a 5-4 majority brewing in favor of declaring the individual mandate unconstitutional. To give us some idea of how this case is proceeding, I want to quote Jamie Dupree, whom I respect for his even-handedness in the way he reports the news. He is inside the Supreme Court during the oral arguments.

Legal experts have been wondering for months what Justice Anthony Kennedy might do, as he is considered the “swing” justice on the Court between a bloc of four more liberal justices and four more conservative ones.

Just a few minutes into Tuesday’s arguments, Kennedy made clear that he has deep reservations about the individual mandate.

“Can you create commerce in order to regulate it?” Kennedy asked the Solicitor General, who as the lead lawyer for the Obama Administration, did not have the best of days arguing before the High Court.

“Do you not have a heavy burden to show authorization under the Constitution?” Kennedy asked a little later in the arguments, as he raised concerns that if Congress is allowed to move forward with the individual mandate, lawmakers will be able to do just about anything.

“Can you identify for us some limits on the Commerce Clause?” Kennedy asked.

Kennedy’s questions to Solicitor General Donald Verrilli were backed up by three other justices, as Samuel Alito, Antonin Scalia and Chief Justice John Roberts all took issue with the individual mandate.

Obviously, no one really knows how this case will be decided. Today will be the last day of oral arguments before the Supreme Court, and then the case will go behind closed doors. What I wouldn’t give to be privy to those discussions, as the Justices argue the merits of the case among themselves. We should expect a ruling in late June, well before the general election campaign.

Even if the individual mandate is struck down, as it should be, there will still be questions to be answered, scenarios to be considered. For example, if the Supreme Court declares the individual mandate unconstitutional, what happens to the rest of the law? We need to remember that Obamacare contains more than just the mandate that everyone in America purchase health insurance. Will the rest of the law be allowed to stand, or will striking down the individual mandate render the rest of the law null and void, due to the economics of the situation?

I can’t claim to be a legal expert or an attorney, but I will be watching this case closely. It will be very interesting to see how it unfolds and the decision(s) that could be handed down. For more on this story, you can visit Steven Birn Speaks.

About LD Jackson

LD Jackson has written 2033 posts in this blog.

Founder and author of the political and news commentary blog Political Realities. I have always loved to write, but never have I felt my writing was more important than in this present day. If I have changed one mind or impressed one American about the direction our country is headed, then I will consider my endeavors a success. I take the tag line on this blog very seriously. Above all else, in search of the truth.

7 comments to Individual Mandate In Trouble At The Supreme Court

  • Regarding your specific question about the rest of the law, the 11th Circuit held that the mandate was severable, and allowed the rest of the law to stand. If the mandate is struck down, I expect the SC to affirm. I don’t think the SC would have the cahones to strike the whole thing down. Assuming 5 agree the mandate is unconstitutional, you’d have to get all 5 to also agree to sgtrike down the whole thing – not likely.

    Don’t get too excited about oral arguments, though. The Justices like to give lawyers a hard time. And to the extent that you can read anything into the tone and tenor, opponents of the bill may get Kennedy but lose Roberts. The CJ didn’t seem as skeptical.

    • Hey, we can always hope, can’t we? Thanks for sharing your perspective on the case. You lawyer fellas (did you say you were recovering) understand these things much better than do I.

      • Of course you can hope! I’m just advising not to count the chickens before they hatch. The oral arguments have been a positive sign, but there will be a lot of back-and-forth debate between the Justices when this is over. It’s important to remember that just because orakl arguments end doesn’t mean that all nine have reached their conclusion. If Kennedy and/or Roberts are on the fence, you can expect that the other Justices will work hard to persuade them to go along.

        Right now it looks like 3 are leaning to affirm the 11th Circuit (the mandate is unconstitutional), 4 would reverse, and Kennedy and Roberts are probably still undecided (although the oral arguments suggest Kennedy may be heading in the direction of affirming). We need both Roberts and Kennedy to win. There is no room for error with 4 seemingly firm in their support of the mandate.

      • Let me try this again. I’m cautiously optimistic, and I’m not sure what to make of all the gloom-and-doom coming from the liberal media. Perhaps they really have been taken off guard, thinking this was a slam-dunk. They shouldn’t have; as I wrote Monday, this is a really hard case based on eisting precedent. (The disclaimer at the end is critical.)

        Or, perhaps the media is just being melodramatic. Or maybe they have something up their sleeves. I’m just saying it’s too early for anyone to run around and say “Yay we won!” or “Boo we lost!”

  • I’m a worry wart. I’ll be praying until the final decision come down.

  • We will again be hearing how this is a Civil Right and how now it’s being violated like the Martin shooting.

    I think the mandate is a big part of it but also the sneaky way the Obama admin tries to use the Interstate Commerce Clause to make it kosher… or the Militia Act!

    I hope it goes down… I think it will… partially.

  • bill

    maybe a bit off-topic here but just some food for thought.
    i’ve always been amazed and heartened by the founder’s wisdom and fore-sight:
    here’s mr. madison writing in federalist 62:

    “The internal effects of a mutable policy are still more calamitous. It poisons the
    blessings of liberty itself. It will be of little avail to the people that the laws are made
    by men of their own choice if the laws be so voluminous that they cannot be read,
    or so incoherent that they cannot be understood;
    if they be repealed or revised before they are promulgated, or undergo such incessant
    changes that no man, who knows what the law is today, can guess what it will be
    tomorrow. Law is defined to be a rule of action; but how can that be a rule,
    which is little known, and less fixed?”

    perhaps my intellect is small and my experience inadequate, but to me this
    is ‘scary’ stuff’ bordering on clairvoyance…b


  • Trackbacks: