Compilation of analysis to Day 3 of Supreme Court hearings on Obamacare

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The mandate lives! That’s the latest missive from the roller-coaster at the Supreme Court:

The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that.  A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress.  They could not come together, however, on just what task they would send across the street for the lawmakers to perform.  The net effect may well have shored up support for the individual insurance mandate itself.

However, Jeffrey Toobin told CNN the fate of President Obama’s health care law looks even worse.

“This still looks like a train wreck for the Obama Administration, and it may also be a plane wreck. This entire law is now in serious trouble. It also seems that the individual mandate is doomed. I mean, Anthony Kennedy spent much of this morning talking about if we strike down the individual mandate, how should we handle the rest of the law? Now, it is less clear that they are going to strike down the whole law. There does seem to be some controversy in the court about that. Certainly there are some members of the court, Antonin Scalia, Justice Alito, who want to strike down the entire law, but it seemed almost a foregone conclusion today that they were going to strike down the individual mandate, and the only question is does the whole law go out the window with it?”

He added: “Well, it’s hard to imagine how things could be going much worse for the Obama Administration.”

Matt Steinglass doesn’t see Obamacare’s slippery slope:

Whether or not you think they’re a good idea, individual mandates are clearly a rational-seeming way to solve problems in the health-insurance market, rational enough that they appealed to the Heritage Foundation, Republicans in Congress, Mitt Romney and so on, and eventually (and reluctantly) to Democrats. But I can’t think of any other area of the economy or society where having the federal government order every citizen to buy a good from a private provider seems like a reasonable solution to a problem, or has seemed so to anyone else, Democrats, Republicans, or what have you.

Allahpundit thinks Sotomayor’s argument in favor of severability has some merit:

The argument for having the Court kill the whole thing is more pragmatic than legal, I think — no one wants to see insurers go out of business because Congress ends up gridlocked and paralyzed on yet another issue. But don’t forget (a) the insurance industry has a lot of political muscle and they’ll bring the full force of it to bear on incumbent congressmen to find a solution and (b) given that we’re all going to have to put on our big-boy pants soon to reform Medicare, maybe a crisis now will be a wake-up call in forcing Congress to start thinking big. Surely they wouldn’t sit idly by while America’s health insurance industry disintegrated around them.

Justice Kennedy appeared skeptical of Sotomayor’s point. Lyle Denniston believes that Obamacare’s Medicaid expansion could be in danger:

Unless a closing oration by a top government lawyer stirs some real sympathy for the poor, the new health care law’s broad expansion of the Medicaid program that serves the needy may be sacrificed to a historic expression of judicial sympathy for states’ rights.  It probably would require the Court to be really bold, to strike down a program passed by Congress under its spending power, and to do so for the first time in 76 years, but the temptation was very much in evidence in the final round of the Court’s hearings this week on the Affordable Care Act.  It probably would be done by a 5-4 vote.

First Read looks at the “distinct possibility” that the individual health insurance mandate — and perhaps the entire health-care law — could be decided by another controversial 5-4 Supreme Court decision.

“Such an outcome, especially after other 5-4 decisions like Bush vs. Gore and Citizens United, would have two potential consequences. One, it would feed the perception that the U.S. Supreme Court is as partisan as Congress and increasing parts of the media; in other words, these nine justices (either trained at liberal law schools or members of the conservative Federalist Society) are essentially political actors wearing black robes.”

“And two and most importantly, a 5-4 decision would satisfy no one. If the court strikes down the mandate and the health-care law by that narrow margin, liberals and Democrats would blame it on the conservative justices. If the mandate and law are upheld by a 5-4 decision, conservatives would point their fingers at the liberals and the unpredictable “mushy” swing justice, Anthony Kennedy. That’s the problem with a split decision: The losers would feel like they lost on a political technicality, not because there was a legal consensus.”

Josh Marshall thinks it’s worth noting that the upshot of the anti-mandate arguments being made before the Court this week is that a broadly market based approach like the Romney-Obama model is unconstitutional; but single payer would be constitutional.

Ross Douthat wonders if killing the mandate helps Obama:

If the Supreme Court invalidates the mandate, the justices’ traditional “presumption in favor of severability” will probably ensure that the rest of the legislation remains intact – which might reassure moderate voters that the health care bill wouldn’t actually trample their liberties, because the courts are on the case. Stripping away the law’s most unpopular component might make the rest of it marginally more popular. And setting a clear limit on liberalism’s ability to micromanage Americans’ private decisions might make voters feel more comfortable voting to re-elect their micromanager-in-chief.

Jonathan Bernstein argues that Court’s decision won’t affect the 2012 race:

If Romney believes that he’ll be helped by calling ACA an unprecedented power grab, he won’t be prevented from doing that if the Justices decided it’s constitutional. If Barack Obama wants to brag about the popular bits of health care reform (and the individual mandate is certainly not one of those), then he’ll do so, regardless of what the Court thinks. That’s probably true even in the unlikely event that the entire ACA is thrown out, but it’s certainly true if the law is only partially tossed.

Ed Kilgore differs:

[A] decision invalidating the individual mandate would change the dynamics of the general election in ways that might prove uncomfortable to the GOP. Currently the Republicans “Repeal!” position is attractive, or at least not repellent, to a wide range of people with a wide range of concerns about ObamaCare, including those who would strongly support for more aggressive federal efforts to expand health care coverage or ban discrimination by private health insurers. If the individual mandate goes down, and with it prospective prohibitions on prexisting condition exclusions, the health care debate during the general election campaign will shift from scrutiny of ObamaCare from what, if anything, Republicans are prepared to offer.

And Josh Barro bets that abolishing Obamacare would lead to single-payer:

Strike down Obamacare, and only the Left will have a viable plan for universal coverage, and it will be one even less palatable to conservatives than the one that was enacted in 2010. Absent another viable proposal, they will eventually get their way, and Medicare For All will become a reality.

Peter Schorsch is the President of Extensive Enterprises and is the publisher of some of Florida’s most influential new media websites, including,,, and Sunburn, the morning read of what’s hot in Florida politics. SaintPetersBlog has for three years running been ranked by the Washington Post as the best state-based blog in Florida. In addition to his publishing efforts, Peter is a political consultant to several of the state’s largest governmental affairs and public relations firms. Peter lives in St. Petersburg with his wife, Michelle, and their daughter, Ella.