Individual mandate

"Constitutional Thunderdome": Day Two of Obamacare Oral Arguments


Reason's Damon Root attended the pivotal second day of oral arguments before the Supreme Court on the Patient Protection and Affordable Care Act (ACA), which he described as a "Constitutional Thunderdome." The debate over the legality of the mandate to purchase insurance at the heart of ACA was, says Root, a rough-and-tumble colloquy about the "the role of government in our lives" and "what sort of limits the Constitution places on the federal government."

"I'm more confident after today's arguments than I was going in that the individual mandate is in trouble," says Root. Oral arguments end tomorrow and the Supreme Court's decision is expected in early June.

Runs about 3 minutes.

Produced by Anthony L. Fisher, shot by Josh Swain and Fisher.

To read Root's dispatch from Day One of the proceedings, click here.

For more of's coverage of Health Care debate, click here.

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NEXT: Defenders of Mandatory Health Insurance Provision Still Arguing That It's Not a Purchase Requirement

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  1. When the Law of the Thunderdome finally arrives, will it be more or less just than the current system? Discuss.

    1. Two Men Enter
      One Man Leave

      Bust A Deal
      Face The Wheel

        1. What’s wrong with being sexy?

      1. Who Run Bartertown?

      2. Two Constitutions Enter
        One Constitution Leaves

  2. Sounds like Kennedy has a problem with the idea that you can “create” commerce in order to regulate it.

    What I don’t understand is why any SCOTUS judge would be ok with this.

    1. Everything within the state, nothing outside the state, nothing against the state!

      1. Vi haff vays of makink you eat ze broccoli.

        1. Commerce? Commerce? WE DON”T CREATE NO STEENKING Commerce!

    2. Sounds like Kennedy has a problem with the idea that you can “create” commerce in order to regulate it. What I don’t understand is why any SCOTUS judge would be ok with this.

      According to the government’s case, evidently breathing is commerce. Living as a hermit, snaring rabbits, picking mulberries and never seeing another soul is still commerce?!

    3. Sotomayor tried to compare the Unaffordable Deathpanel Act to mandatory emission controls in cars. Then she said:
      “There is government compulsion in almost every economic decision because the government regulates so much. It’s a condition of life that some may rail against.”

      You’re damn right we will rail against it, especially when you make the jump from REGULATING THE THING WE BUY to MAKING US BUY THE THING.

      Emissions control is a mandated FEATURE of a car. Now she is trying to MAKE US BUY THE CAR. Respectfully, Justice Sotomayor, GO FUCK YOURSELF.

  3. Two legal theories enter! One legal theory leaves!

  4. I think it’s interesting that we are approaching a Hobbsean war of all against all from the imposition of Leviathan rather than the lack of same.

    1. And what better scenario for the Ruling Class to profit from?

  5. I’m more confident after today’s arguments than I was going in that the individual mandate is in trouble.

    I’m getting the same read from one of my hospital lawyer orgs, which somehow wangled a seat for the arguments.

    Tomorrow will be interesting as well, as it puts on the block another infringement on the Constitutional scheme of divided goverment: the ability of the feds to leverage money sent to the states into control over the states.

    1. Wasn’t that issue already dealt with and affirmed by SCOTUS? I didn’t realize there was a new angle.

      1. It was, and I haven’t looked at those cases, but I am quite confident that SCOTUS included some trapdoors, backdoors, and weasel words in those opinions on which they could build some sort of limiting principle (that OCare exceeds).

      2. I was wondering about that too. If medicaid expansion is ruled unconstitutional, does it mean states could lower the drinking age without losing highway money?

  6. All this “I’m more confident after today’s arguments” is pissing me off. It’s just going to get my hopes up, only to be brutally let down a few months from now. This is the court that gave us Heller and Citizens United but it also gave us Kelo and other disastrous rubbish.

    I’ll be sulking in my trailer.

    1. I know that feel, bro.

      Well, besides sulking in a trailer.

  7. Are you serious?

    Are you SERIOUS?!?!?

    Are you not entertained?!?!?!

  8. Are you thinking what we’re thinking?

    1. I think so, Shrike, but where are you going to get a gerbil, lube and radiator hose at this time of night?

      I said “you” because I’ll have no part of it.

      1. Spoofs are the lifeblood of libertarian chat-rooms.
        Kinda makes you wanna take your ball and go home, what?

        1. We’re on strike.

  9. The problem with Root’s analysis is that the liberals don’t care about stare decisis. This case is only about this case as far as the four liberals go.

    If the mandate is struck down, Scalia dies and another liberal is installed and the exact same law comes before the SCOTUS next year, the liberals would vote to uphold the law stare decisis be damned.

    1. Consistency is for the little people.

      1. Indeed. It isn’t how consistent one’s position is but the strength of one’s commitment to the cause which matters.

  10. I think you’re wrong about the same law coming back again next year. They’ll never get this through Congress again so it’s do or die right now.

  11. People are getting a little out over their skis on this one.

    They still haven’t even ruled that there is standing to challenge the law until the mandate officially goes into effect. The arguments today are irrelevant and nothing more than a dog and pony show if they rule there is no standing. And I’m inclined to think that’s exactly what they’re going to do. This particular court has a long history of simply refusing to hear or somehow finding a way to put cases on the back burner that they find too troublesome.

    1. Some commenters have come to the conclusion that the Court is committed to deciding the case on its merits due to the fact that it spent an entire day addressing the Anti-Injunction Act (only an issue for the taxing power) defense that the government dropped long ago. Based on the transcripts of the first two days, the tax argument has received far less attention at oral argument than the Commerce Clause (i.e. Commerce Clause or bust!), and most justices seemed skeptical of the taxation argument. Thus it seems like the Court will not use standing to dodge the real issues. CATO agrees:…..-decision/

  12. I AM THE LAW

    1. I AM THE LAW

  13. I AM THE LAW

    1. And those pesky citizens best not forget it!

  14. Wow OK man so who comes up with all that crazy stuff.

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