6/24/2012

So if the individual mandate in Obamacare is struck down, what is the probability that all of Obamacare will be struck down

A survey of former Supreme Court clerks and 18 attorneys who have argued before the court gives us some information.



So the bottom line? They think that the mandate will be found unconstitutional. But the various other questions indicate that only part of Obamacare will be struck down.  That the Medicaid expansion will be upheld (essentially meaning that there is no limit to what can be required in exchange for government funds) and that even if that is struck down, it won't cause anything else to be struck down.    

The House originally had a severability clause in Obamacare.  The Senate took this out, but because of Scott Brown winning in Massachusetts the House couldn't put the clause back in.  So how is the court going to logically decide what to keep and what not to keep?  Here are two telling comments:

JUSTICE SCALIA: Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages?
And this even more telling discussion.
JUSTICE BREYER: I don't think it's not uncommon that Congress passes an act, and then there are many titles, and some of the titles have nothing to do with the other titles. That's a common thing. And you're saying you've never found an instance where they are all struck out when they have nothing to do with each other. My question is, because I hear Mr. Clement saying something not too different from what you say.  He talks about things at the periphery. We can't reject or accept an argument on severability because it's a lot of work for us. That's beside the point. But do you think that it's possible for you and Mr. Clement, on exploring this, to — to get together and agree on -­ (Laughter) JUSTICE BREYER: — I mean on — on a list of things that are in both your opinions peripheral, then you would focus on those areas where one of you thinks it's peripheral and one of you thinks it's not peripheral. And at that point it might turn out to be far fewer than we are currently imagining. At which point we could hold an argument or figure out some way or somebody hold an argument and try to — try to get those done. Is -- is this a pipe dream or is that a - 
MR. KNEEDLER: I — I — I just don't think that is realistic. The Court would be doing it without the parties, the millions of parties -­ 
JUSTICE SCALIA: You can have a conference committee report afterwards, maybe. (Laughter)  
MR. KNEEDLER: No, it just — it just is not something that a court would ordinarily do. But I would like -­  
The sad thing is that Breyer wants to desperately save the rest of the law and this was the best that he could come up with.  With comments such as these, how is it possible that they can pick and choose what parts of the law to keep?

UPDATE: Is it possible for the New York Times to write a news story that isn't very biased?
Congress held no hearing on the plan’s constitutionality until nearly a year after it was signed into law. Representative Nancy Pelosi, then the House speaker, scoffed when a reporter asked what part of the Constitution empowered Congress to force Americans to buy health insurance. “Are you serious?” she asked with disdain. “Are you serious?”
Opponents of the health plan were indeed serious, and so was the Supreme Court, which devoted more time to hearing the case than to any other in decades. A White House that had assumed any challenge would fail now fears that a centerpiece of Mr. Obama’s presidency may be partly or completely overturned on a theory that it gave little credence. The miscalculation left the administration on the defensive as its legal strategy evolved over the last two years.
“It led to some people taking it too lightly,” said a Congressional lawyer who like others involved in drafting the law declined to be identified before the ruling. “It shouldn’t strike anybody as a close call,” the lawyer added, but “given where we are now, do I wish we had focused even more on this? I guess I would say yes.”
Looking back, Democrats said they had had every reason for confidence, given decades of Supreme Court precedents affirming Congress’s authority to regulate interstate commerce, and lawyers who defended the law said they had always taken the challenge seriously even if politicians had not. But they underestimated the chances that conservative judges might, in this view, radically reinterpret or discard those precedents. . . .
Does this article strike one as being written for and by Democrats?  It is true that for decades the Supreme Court had obliterated the original meaning of the commerce Clause, but does that mean that the congress can stretch that meaning even more?  Surely even Democrats must see a difference between a farmer who grows wheat for his own consumption being regulated and forcing someone to grow wheat (or in this case forcing them to buy health insurance).  Why is acknowledging such a difference the same as radically reinterpreting or discarding precedents?  Of course, the piece has other references to an "increasingly activist court."

One has to really appreciate how the New York Times keeps on blaming the poor presentation by Verrilli, as if the Justices aren't able to evaluate the arguments independently of how well the lawyers before them argue their cases.
By the end of January 2011, judges in Florida and Virginia had ruled it unconstitutional. Only then did the Senate and the House hold hearings on its constitutionality, and the administration grew worried. . . . Donald B. Verrilli Jr., who became solicitor general last June, rehearsed in multiple moot court sessions. But on the critical day of Supreme Court arguments on March 27, he momentarily choked on a drink of water and was hammered by justices skeptical of his argument. He gave a rambling answer about the limits of Congressional power and had a hard time controlling the discussion as he was peppered with questions. . .
Why not just accept that Verrilli had an almost impossible case to make? 

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