Are There Five Votes to Uphold ObamaCare's Mandate?


Tom Goldstein of SCOTUSblog has a brief mid-argument update from inside today's Supreme Court hearing over the constitutionality of ObamaCare's health insurance mandate:

It is essentially clear that the four more liberal members of the Court will vote in favor of the mandate. But there is no fifth vote yet. The conservatives all express skepticism, some significant. They doubt that there is any limiting principle.

At the time of Goldstein's post, the challengers had yet to argue, so things could change quickly. We'll know more soon enough. 

Update: Justice Anthony Kennedy, believed by many to be the crucial swing vote in determining the mandate's constitutionality, said the government faces a "very heavy burden of justification" to show how the Constitution would authorize the mandate, according to The Wall Street Journal

NEXT: The Next Genius Idea About Private Pensions: Let's Hand 'em Over to the States!

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  1. Nice try Reason, but I will not step on to that rug of hope just to have it pulled out from under me.

    1. We’ve been on the “Health care reform is dead! Oh wait, it’s back as a zombie. Oh wait, someone killed it with a shotgun. Oh, it’s back as a zombie-ghost” for a couple years now.

    2. That would be the smart call.

    3. “And the flowers are still standing!”

    4. I prefer sports metaphors:

      Hope is the football, and Reason is Lucy van Pelt.

  2. I guess the Constitution has become like the bible. There is only one set of words no matter who reads it but every single person reads a different meaning into those words. Apparently we can’t even get 9 people who are supposed to be scholars to agree on what those words actually say.

    1. There is only one set of words…

      What is the meaning of the word ‘is’?

      1. Is is the 3rd person singular form of the word be, which means: to have objective existence.

  3. Jesus Christ, the Court is a goddamn joke. Each Justice looks at the Constitution through his team’s colored glasses, each of which apparently block out siginificant portions of the document.

    1. Each Justice looks at the Constitution …

      No, I don’t think they actually do look at it.

      1. What’s this “Constitution” you people keep yammering about?

      2. No, I don’t think they actually do look at it.

        Sure they do, or at least they did … once or twice … back in law school … because they had an open book quiz on it.

  4. Recuse this, assholes!

    1. She only has to recuse if her impartiality could reasonable be questioned. How could you possibly question her objectivity on Obamacare?

      1. She was going to vote in favor of it regardless of whether she worked on it as an attorney.

      2. By that standard all nine of them would have to recuse themselves from every case they hear.

        1. How so?

          1. Having 2 swing judges is like having 10 battleground states. When you know how the call is going to go before you even start what is the point anymore?

  5. It is essentially clear that the four more liberal members of the Court will vote in favor of the mandate.

    Dang it. I was having the faintest bits of hope about Ginberg after her questions yesterday.

    1. According to the WSJ she and Breyer are “weigh[ing] in repeatedly to further Verilli’s argument, and to counter skeptical remarks” made by Scalia and Alito. Haven’t signed in to WSJ to read the whole thing yet, though.

      1. Here is the transcript from day one.

  6. Hey, does anyone know about this: are’nt both sides on agreement over the severability of the mandate? Is the court going to appoint a third party to argue for that like they did with the tax injunction act?

    1. I believe they are hearing the severability argument tomorrow separately.

  7. Justice Anthony Kennedy… said the government faces a “very heavy burden of justification” to show how the Constitution would authorize the mandate…

    Well, that could either be good news, or him pre-emptively covering his ass when he votes that it is Constitutional.

    1. Meaningless. The government needed a “compelling interest” to continue discriminating on the basis of race, and — voila — such a compelling interest was found in the nonsense of “diversity.”

  8. Interestingly, the “liberal” justices were not exactly friendly to the SG yesterday, and shot down his arguments with near mockery.

    If the liberals can be expected to vote to uphold the mandate, are we not conceding that their jurisprudence is totally outcome-based, instead of Constitution-based?

    While this sometimes appears to be the case, I don’t think we can oversimplify things that much.

    1. “Interestingly, the “liberal” justices were not exactly friendly to the SG yesterday, and shot down his arguments with near mockery.”

      That’s just the anti-tax part I bet. I think the liberal justices are going to do the reverse of what I describe below for the whole court; they will give the act’s opponents a win on the injunction act and then back the mandate and everything else the administration wants. That way they are like “See, we’re not political, we savaged the SG on that anti-tax nonsense.”

      1. It just means they want to get the ruling done ASAP, instead of waiting three more years.

  9. I think btw that the very set up of the cases and what they are hearing in conjunction with each other leads me to predict they are going to 1. bypass the anti-tax injunction act, 2. strike the mandate (5-4), 3. severe the act, and then 4. ok the Medicaid thing (likely 7-2 or 8-1).

    That way the court is covered rather nicely, they certainly won’t look too political or activist because they will have given the administration wins on several issues.

    1. I think you’re right, especially on the severability. By not having a severability clause the Democrats were basically daring the court to invalidate the whole law. Instead the justices are going to tie themselves into legal knots to put it in themselves. The only way Medicaid doesn’t go thorough is if there is no opt out for the states. (This is no commentary on the constitutionality of the decisions only the likely outcome.)

    2. Would those have to be four separate opinions?

      If it has to be one opinion, you end up with three or four camps with a split decision.

      I say if they have ot strike the mandate, they have to strike at least community rating and guarenteed issue with it.

    3. That’s a pretty good prediction, MNG. I wouldn’t be surprised if you’re right. My question, though, is can they sever the act? I thought there was a lot of talk about a phrase being omitted that would have allowed that.

      1. They did not include a severability clause in the act. However, the justices will likely not want to shit-can the entire act in spite of the lack of severability, so they will tie themselves in knots to justify allowing pieces of the act to stay intact. It’s dishonest, but that’s what they’ll do.

  10. Very heavy burden. Like neutron star heavy.

    1. this country is becoming a burden – a criminal banana republic yoke on the backs of liberty.

      *music swells*

      I shall lead us out of the Wasteland!

  11. Stop spoiling it for me.

    1. You mean you don’t want to find out what happens until June?

      1. I’m looking forward to listening to the arguments in an hour to determine the justice’s frame of mind for myself.

  12. We have Kennedy.

    He said the mandate fundamentally changes the relationship between citizens and the government.

    We probably have Roberts and Alito as well.

  13. I shouldn’t be surprised or disgusted, but I am.

    What disgusts me is how most of the justices go right to utilitarian arguments. Is the bill good? How will it affect the insurance market? What are it’s effects on peoples’ behavior?

    Those kinds of arguments shouldn’t even be reachable in a Supreme Court argument session. It’s Congress’s job to deal with utilitarian issues AND Constitutional ones. Of course, Congress utterly fails at this.

    The ONLY thing that Supreme Court justices are to do is determine if a law is legal, that is, if the Federal government has been delegated the power to do the thing in the act.

    I know, what I naive boy I am.

    1. Don’t feel bad, my naivete wants to believe they will say that congress overreached by a wide margin.

      1. “Hate to nitpick, but no you didn’t say that.”

        Yes moron, I did.

        “Nope. Despite you trying to threaten me.”


        How fucking stupid are you that you choose to “nitpick” something and totally make an idiot of yourself in doing so?

  14. Are you thinking what we’re thinking?

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