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  • Video: Individual Mandate Under Fire: Obamacare at the Court, Day 2

    The packed hearing room of the Supreme Court was a who’s who of lawyers and political leaders this morning, all of whom witnessed what was an undeniably bad day for the Obama Administration and its defense of the President’s health care law. Paul Clement and Michael Carvin, attorneys representing those challenging Obamacare, battled Solicitor General Donald Verrelli, who was defending the law, and urged the Supreme Court to find the individual mandate in ObamaCare unconstitutional.  Present in the courtroom were about twelve state attorneys general, including those from Utah, North Dakota, Florida, Texas, and Virginia, as well Eric Holder, Kathleen Sibelius and U.S. Senators such as Mitch McConnell, John Cornyn, and John Kerry.

    The hostile questioning for Clement and Carvin from the liberal justices, particularly Steven Breyer, Ruth Bader Ginsburg and Sonia Sotomayor, left little doubt as to their collective view that requiring individuals to buy health insurance was within the Commerce Power of Congress – an argument that liberals advanced in defense of the individual mandate’s constitutionality.  And at times when Verrelli was faltering in answering tough questions from other more skeptical justices like Antonin Scalia, Justices Ginsburg and Breyer would step in to help him, posing arguments in favor of the government as if they were questions.

    Verrelli’s chief argument was that the health care market is unique and that everyone will have to participate in it at some point, so the government is justified in requiring people to buy insurance for it now.  But there’s a difference between regulating commerce that’s already happening and forcing individual Americans to enter into commerce – in this case, the health care market – so that Congress can better regulate it. Justices Breyer and Sotomayor seemingly could not accept a meaningful difference between the two.

    If Congress were able to regulate things that people will eventually have to do, then there would be virtually no limits to its power. When Verilli was asked a question on that subject, he had a difficult time answering. Justice Alito  pointed out that everyone eventually dies and faces burial expenses – and under the government’s rationale, couldn’t it compel all Americans to buy burial insurance so that others are not stuck with the costs?

    There were several clear indications that the government may have a high hill to climb in defending its position. Justice Kennedy, who is often seen as the swing vote, indicated through his questions that the government may have a “heavy burden” to show that what it is doing is constitutional since it is compelling people to enter into commerce. Although Justice Kennedy did express some concern about the challengers’ arguments, his most telling concern was with the scope of the government’s position.  At two different times, Justice Kennedy stated that the government’s theory would “fundamentally change the relationship between the individual and the state.”  That may be very telling indeed.   Justice Scalia raised familiar questions about the ability of the government to compel you to eat broccoli to stay healthy, or to join an exercise club for the same reason since unhealthy people impose such great costs on our economic system, putting to rest the concern that he was bound by his position in an earlier case to support the mandate.

    The Solicitor General’s chief problem throughout the arguments was that he was unable to give a clear, simple, and easily understood answer to this question:  If Congress has the power to compel the purchase of an insurance policy from a private company, what limiting factor is there on congressional power under the Commerce Clause?  He was asked that same question more than once by different justices and never came up with a reasonable or principled constitutional distinction.  Justice Scalia admitted that he came up with distinctions, but denied they were based on constitutional principles.

    The funniest answer in the two hours (although there was no laughter in the courtroom) was when Verrelli claimed that Congress had passed the ObamaCare law to deal with a serious problem “after long study and careful deliberation.”  Anyone who knows the history of the frenzied and swift nature of the passage of ObamaCare, when almost none of the members of Congress knew what was in the 2,700 page bill, realizes what an absurd statement that was.

    Listen to today’s Supreme Court hearing on Heritage’s Scribe.

    Posted in Featured, Obamacare [slideshow_deploy]

    25 Responses to Video: Individual Mandate Under Fire: Obamacare at the Court, Day 2

    1. americangirl says:

      if the court doesnt strike it down,,then they should be thrown off the bench,,because their job is to uphold the constitution as well…WHAT HAVE WE BECOME AMERICA WHEN OUR GOV AND OUR COURTS IGNORE OUR CONSITION??

      • tucanofulano says:

        Obama's "game plan" = wind up expanding Medicare to cover everyone, "womb to tomb" and increase Social Security taxes 500% on everyone "womb to tomb". The gambit = get "Obamacare" in front of the Supremes in order to get it declared unConstitutional (which it is) in order to create support/demand for his single-payor "Womb to Tomb" universal Medicare plan (which as executive He will control).

    2. Bob B. says:

      "Justice Kennedy stated that the government’s theory would “fundamentally change the relationship between the individual and the state.” "

      I don't think very many of the people who read that will fully understand the depth of that comment.

    3. Jamie says:

      It's no laughing matter, but at times you find yourself laughing at the ludicrous nature of these hearings. It seriously does concern me that these people represent the brain trust, the best and the brightest of our land, and yet they can't grasp a simple concept of commerce vs. coercion. This whole thing could have been avoided if Insurance companies were portable over all State lines, allowed to offer different, individualized, services based on consumer need, and practiced more free market principles.

    4. Gigi says:

      I think that's a Maine Coon Cat in the background. On the leash.

    5. Bobbie says:

      How can any American justices deny the true interpretation of the peoples constitution? People, students, immigrants, America have been falsely misled regarding their own constitution unknowing they're giving up all of America's freedom! Justice is suppose to defend our constitution not give into wrongful interpretation because some personal opinions believe in perpetual victimization that reasonable minds are able to rise above and would rather move on freely. It isn't the government's document to interpret government authority!!!!! If the founders were racist, they certainly wouldn't have left it out of the most important document to the people!

      How can some American justices decline the power to the people? Especially Kagan, Sotomoyer and any other former or current welfare recipients on the bench! Spits on the Constitution after taking advantage of America to get to where they are today? Now they want to force us all through the controls of government by challenging the constitution to destroy it!

      What threatens the freedom of America is a government in power taking advantage of some who have been wrongfully influenced by the abusers of societal mentality with government power that force applications for anything through a government that isn't our own self governing, paying government what benefits government only, being told by government what we want instead of respecting our freedom to keep what we want to ourselves and work for what we want without making it a federal case!

      Handling our own matters including our personal health through freedom, is America! This isn't about health care! Government only mentions "what" will be cared for with no mention on how. It's about increased government costs and control! It's about government design for some Americans free without working for it and others enslaved under government control. Discrimination and racism led by the leader in charge.

      Justice without respect to the peoples' constitution withstanding all time when properly interpreted, would rather socialize with belittlement of human life than credit our own minds ability to get where we want freely without holding hands for governmental approval as we lived before this great interruption! All because of the general resentment of the white man when if it wasn't for the native man working with the white man, there'd be nothing but the native and the white man! In the beginning of America, men came to know men and the common good of men through native and white men!!!

      It's funny how Obama tries to stir up hatred by allowing the calling people of questionable acts white when their appearance truly is not. Very unfortunate to have a leader of this country have such hatred for a skin color he'll abuse his authority to place judgment on innocent people guilted by Obama's hatred and intolerance of a skin color they have no choice in!

      Please people get to know your American Constitution! It empowers the people with government restraint! obamacare is going to destroy the whole concept and every bit of human dignity!
      If government mandates on private citizens who aren't burdens and costs to society is constitutional, America is no longer! If our justice fails and it comes to that, please don't call her America!

    6. stephen says:

      I couldn't pay attention after I saw the cat on the leash in the background! What was that?!

    7. Liam (UK) says:

      If the government cannot compel individuals to do this, then what right have they to impose taxes on individuals to provide any services. The republican argument just doesn't stack up. America is such a backward state.

      Why do you think that you have the right to tell the Afghans or Iraq people how to live their lives if you won't look after your own people?

      • Bobbie says:

        Excellent point, Liam. No one should have to be taxed that isn't wanting, needing, or depending on government to service them unconstitutionally! Government services is rightfully the cost of those directly benefiting.

        Freedom is such a forward initiative! Less government more freedom!

      • Ricky Wright says:

        Liam, you run your country your way, and we, the people, will run ours. A. You don't have a dog in this fight, so stay out of it. B. WE are the greatest country in the world because WE don't have, nor WANT a queen., and C. We ran your country out of here the last time they tried to tax us, and your country has never even been close to being as GREAT as our country, and it's BECAUSE we have kept liberal/socialist thinkers from power here because of the intelligence of our forefathers in creating the Constitution of the United States of America. God Bless and have a GREAT day…

      • David says:

        The constitution was amended to allow for the taxation of individuals. Please see the 16th amendment.

      • guest-x says:

        I'm glad you live in the UK, not in U.S.A.

    8. Dennis says:

      No doubt the Government has a real problem with this issue. And it is correct to assume that if this is ruled constitutional the Government will have an open door to unlimited control over each American and state.

    9. Immediately following the hearing, C-SPAN broadcast comments by Senator Chuck Shumer who claimed that the Heritage foundation had endorsed the idea of an individual mandate during the Clinton administration. Is this true?

      • Pragmatic says:

        Yes. It's true. For a long time the Republicans used the mandate as the more free market oriented approach to healthcare reform while the Democrats promoted a single payer system.

        Here one of Heritage's proposals: http://healthcarereform.procon.org/sourcefiles/19

        And here is an interesting blog post on this from the Economist: http://www.economist.com/blogs/democracyinamerica

      • Bobbie says:

        Heritage didn't keep it a secret! They have however, seen the consequences socialized health care will lead to when the intent of those in government control behind it, isn't good and Heritage dismissed it! Not the leaders of America in charge, though! Literally every move a person makes effects their health and the government can't wait to make sure we move according to their approval. This social health care plan is wrong and inhumane and consists of set ups more than quality of care which is NEVER talked about. The government is irresponsible to their own duties that effect us tremendously. This whole mess was brought on by deceit and exaggeration. To let them take personal health care unconstitutionally, or suggest its constitutional is very dangerous and idiotic especially in today's world where rulers rule by all the pomps of ignorance that promotes the ruler in control not people in control of their own! Now showing in America!

        • halberst says:

          Bobbie, I don't know how they could keep it a secret- this was in the papers for years and you can read them on Google News Archives.

          But it seems at least intellectually dishonest to not mention very prominently that The Heritage Foundation came up with the idea of the Individual Mandate and promoted it for years. They like all of us are free to change their opinion. But they seem to be vilifying President Obama for taking their advice.

          The New York Times has a good piece on the Heritage Foundation and their not too public flip flop: goo.gl/xdKze

          Here's a how the Heritage Foundation tried to sell the Individual Mandate back then: “If a young man wrecks his Porsche,” the Foundation’s policy director, Stuart Butler, wrote in 1989, “we may commiserate, but society feels no obligation to repair his car. But health care is different. If a man is struck down by a heart attack in the street, Americans will care for him whether or not he has insurance,” even though “that means more prudent citizens end up paying the tab.”

    10. N. Obi Offor says:

      People that are so angry over this issue should wake up and really try to understand what is at really at stake. One of the supreme court justice was comparing the health insurance requirement with a burial insurance. Well, we are not coparing apples to apples here, but apples to oranges, because we all have one
      opportunity to die, but a lot of individuals have more than their share of opportunities to be sick. The insurance companies pick which individuals and illness they can profit from by denying coverage to, or making it impossible to get coverage by manipulating your premiums. That is just wrong, and this great nation can do better for its people. And as if thats not enough, when one gets sick and finds themself in the hospital, all the hospital sees are signs of $$$$$$$$. Lets call a spade, a spade. This is very wrong, and this great nation can de better for its people.

    11. Chris says:

      @Liam, you obviously know nothing about the American Constitution or freedom. Our constitution does not promise that the govt will "look after" its citizens. However, it does guarantee personal liberties, including the rights of the individual to succeed, or fail on their own. Otherwise, we'd be an 3'd rate nanny state like the UK.

    12. Bob says:

      the cat says DON'T TREAD ON ME!

    13. Rudy says:

      It doesn't seem to occur to anyone that NOBODY inescapably HAS TO go to a doctor. They WANT to. The fact is that medical care is not a need, but a luxury. The government's position that "everyone will have to participate in it at some point" is logically and factually false!

      Now here's an analagous assertion which also happens to be true: everyone will have to eat sooner or later.

      Does that mean that the Framers meant for the Commerce Clause to grant to Congress the power to tell us all what we may or may not eat and when, where, and how to acquire food? Nobody has ever thought so before recently. Do the liberals think so now?

      • halberst says:

        Rudy: why do you call this a liberal idea? The individual mandate came from the Republicans and the Heritage Foundation.

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