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ObamaCare at the Supreme Court, day 2: “A train wreck for the Administration.?

 

Business Insider takes the temperature of the Supreme Court, and finds the weather turning chilly for ObamaCare:

The Supreme Court just wrapped up the second day of oral arguments in the landmark case against President Obama’s healthcare overhaul, and reports from inside the courtroom indicate that the controversial law took quite a beating. 

Today’s arguments focused around the central constitutional question of whether Congress has the power to force Americans to either pay for health insurance or pay a penalty. 

According to CNN’s legal analyst Jeffrey Toobin, the arguments were “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,” Toobin just said on CNN.

He also said he believes ObamaCare is now in “grave danger.”  Courtesy of CNN, some video of Toobin on the Court steps, predicting that no “punting” of the ObamaCare issue will occur, and the real excitement will begin tomorrow:

Much attention is focused upon the furrowed brow of Justice Anthony Kennedy, the “swing vote” who may well determine the future of individual liberty.  The pallor of grave danger falling across the Court is due, in no small part, to Kennedy asking some tough questions, as Fox News reports:

Kennedy, cutting to the heart of the debate over the so-called individual mandate — which was the focus of Tuesday’s hearing — asked the federal government’s attorney to explain what constitutional power the government had to force all Americans to obtain health insurance.

“Can you create commerce to regulate it?” Kennedy asked Solicitor General Don Verrilli. That question addressed a key issue in the case about whether Congress exceeded its regulatory authority under the Commerce Clause. 

Later, Kennedy said the law was unique and felt it was “changing the relationship between the individual and the (federal) government.” He acknowledged the Court normally gives Congress the benefit of the doubt on laws that it passes but in this instance there was a “heavy burden of justification” necessary for supporters of ObamaCare to prove its legal worth. 

What’s not clear is if the answers provided by Verrilli satisfied Kennedy’s apparent doubts. 

Many observers have remarked the Administration seemed poorly prepared to argue their case.  They know they’ve got four justices in their pockets, no matter how shoddy their arguments are.  After all, Solicitor General Don Verrilli is presenting arguments to his predecessor, Justice Elena Kagan.  The Left may well have underestimated the difficulty of winning Kennedy over, however. 

In fact, consistent with the impression Verrilli wasn’t really prepared for the questions he’s encountered at the Court thus far, the Left might not have thought about its arguments much at all.  For example, Justice Ruth Bader Ginsburg asserted “those who don’t participate in health care make it more expensive for everyone else,” which means no one can truly make a “free choice” to stay out of the health care market.

Chief Justice John Roberts, while not entirely hostile to that notion, made an excellent further point: there are many different health care markets, and ObamaCare forces citizens to participate in all of them, in defiance of common sense.  “You’re requiring people who are never going to need pediatric services or maternity services to participate in that market,” Roberts observed. 

This expansive notion of what “requiring people to buy health insurance” actually means, in practical terms, is the event horizon of ObamaCare’s Constitutional black hole.  A great many human endeavors can be said to influence prices in that “health care” market we’re all theoretically jacked into, by virtue of breathing.  Once the flabby maternal arms of ObamaCare rest heavily upon our shoulders, the State will begin lecturing us about all the other things we’re doing to “make health care more expensive for everyone else.”  As Justice Kennedy observed, nothing will ever be the same after that.

 

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Written By

John Hayward began his blogging career as a guest writer at Hot Air under the pen name "Doctor Zero," producing a collection of essays entitled Doctor Zero: Year One. He is a great admirer of free-market thinkers such as Arthur Laffer, Milton Friedman, and Thomas Sowell. He writes both political and cultural commentary, including book and movie reviews. An avid fan of horror and fantasy fiction, he has produced an e-book collection of short horror stories entitled Persistent Dread. John is a former staff writer for Human Events. He is a regular guest on the Rusty Humphries radio show, and has appeared on numerous other local and national radio programs, including G. Gordon Liddy, BattleLine, and Dennis Miller.

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