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 coming. 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.