A Train Wreck? Day Two of Supreme Court Arguments on Obamacare

Demonstrators outside - and arguments inside - reflect the importance of this historic case

Most observers of the Roberts Court see the swing vote in this case resting with Justice Anthony Kennedy. His questions and observations during the arguments do not auger well for the Administration's effort to defend the Legislation against the position asserted by twenty six attorneys general that it is an unconstitutional expansion of federal authority over interstate commerce.The arguments and questions got right to the heart of the constitutional issues presented to the highest Court of the Nation. Is the individual mandate an unconstitutional abuse of Federal power?

P>WASHINGTON, DC (Catholic Online) - I was not inside the Supreme Court on Tuesday, March 27, 2012, for the second day of historic legal arguments on the constitutionality of the Affordable Care Act (A.K.A. "Obamacare"). Like millions of Americans, I followed the news with great interest and concern throughout the day. 

I received several reports following the hearing from lawyers who, like me, are members of the Supreme Court Bar. I respect their analysis, know of their abilities to read such events well and trust their insights. I also know that, contrary to what many may claim, oral arguments on cases of such constitutional importance truly do matter.

I have been in that Courtroom on numerous occasions for other important arguments. I served four times as co-counsel on Constitutional cases before the Supreme Court during my legal career. Finally, I have been present when arguments, to use an expression, "go south".

That is precisely what appears to have happened to the argument of Solicitor General Donald B. Verrilli, the Attorney for the Obama Administration and the Federal Government.

His efforts to defend the Administrations use of the Commerce Clause to require every US Citizen to buy a  health insurance policy or face the Police Power of the State in the form of penalties, were not persuasive.

Using the Commerce Clause, strangely interpreted along with the "necessary and proper" clause, in order to expand Federal authority and somehow justify the government compelling citizens to purchase a product has never happened in the history of the United States. It would stretch the interpretation of the Commerce Clause beyond any past legal precedent. It was hard to defend for that very reason.

His responses, as he was being peppered with questions from the Justices (standard fare for such an important appearance by a lawyer), lacked substance and depth. According to some observers, they displayed the Solicitor General's own lack of confidence in the defensibility of his positions. 

After checking with my sources in the Courtroom - in a rare moment for me given his usual legal positions on such matters - I must affirm the observation of CNN's legal analyst Jeffrey Toobin. He garnered significant media coverage when, following the two hour argument, he first tweeted and then later opined:

"This was a train wreck for the Obama administration. This law looks like it's going to be struck down.I'm telling you all of the predictions - including mine - that the justices would not have a problem with this law were wrong."

Most observers of the Roberts Court see the swing vote in this case resting with Justice Anthony Kennedy. His questions and observations during the arguments do not auger well for the Administration's effort to defend the Legislation against the position asserted by twenty six attorneys general that it is an unconstitutional expansion of federal authority over interstate commerce.

Yesterday's procedural argument sought to utilize the 1867 Anti-injunction Act to give the High Court an opportunity to not even proceed with the underlying constitutional issues. The Administration argued that since the "tax" which would attach to non-compliance was not yet exacted, the case was not ripe.

It failed. The Justices clearly wanted to proceed. On Tuesday they showed observers in the Courtroom they were ready to get to the substance of this historic case and were well prepared to take an historic role in the outcome of this dispute.  

The arguments and questions got right to the heart of the constitutional issues presented to the highest Court of the Nation. Is the individual mandate, which would compel every citizen to purchase a product in commerce, an unconstitutional abuse of Federal power?

It appears that the majority of the United States Supreme Court thinks it is.

On Wednesday, the issue to be argued is if this provision, so integral to the legislation, is found to be unconstitutional, can the remaining provisions of the legislation be enforced.

It is interesting to note that within the thousands of pages of this obtuse and complicated Act there is no severability clause. Such clauses are routinely drafted into legislation. They allow the rest of an Act to stay in effect when certain provisions are struck down by a Court.

Thus, the Wednesday arguments will probably rely on legislative history in an attempt by the Administration to save the provisions of the Act which remain - should the individual mandate be struck down by the High Court.

Of course, most Americans believe that the delivery of health care services in the United States of America needs to be reformed in order to deal with the inequities present in the current system.

However, the issue before the Court in these historic arguments is whether the nationalizing of compulsory health insurance through the Affordable Care Act is constitutional.  Opponents maintain that that it dangerously expands the reach of the Federal Government and violates fundamental constituional safeguards.

This is the first time in history that the American people would be compelled by the Federal government to purchase a good or a service under penalty of sanction by the Federal Government. The Supreme Court seemed genuinely concerned about the implications of such an expansion of federal power.

This case does not deal with other major constitutional challenges to Obamacare. For example, the fact that its implementation involves a mandate from the Health and Human Services Department which will require all employers, including religiously affiliated institutions, to provide contraceptives, abortion inducing drugs and sterilization or face fines and penalties.

This mandate violates the Free Exercise of Religion protected by the First Amendment to the Bill of Rights of the US Constitution. It has drawn the strong opposition of the Catholic Church, other Christians, other people of faith and many people of good will. Cases arising out of that constitutional issue are also making their way to the Supreme Court.

If, in the ruling expected in June, the Supreme Court finds the Act to be an unconstitutional overreach of Federal authority; these other critical constitutional issues would either become moot - or depend upon the outcome of the severability arguments to be presented on Wednesday. Stay tuned.

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