Reporter's Notebook

Pundits Parse Tough Questions By Conservative Justices

By Phil Galewitz

March 27th, 2012, 3:56 PM

The second day of the momentous Supreme Court hearing on President Obama’s health law ended almost exactly at noon.

By 12:03, many conservative lawmakers and television commentators who had been in the packed chambers stood on the marble steps outside, saying the health insurance mandate at the heart of the law appeared to be in deep trouble.

Photo by Jessica Marcy/KHN

“You could just read their body language that they were sympathetic to our argument that the mandate exceeds federal powers,” said Utah Republican Sen. Mike Lee, a member of the Senate Tea Party Caucus.

Many listeners cited comments by Chief Justice John Roberts and Justice Anthony Kennedy, who raised repeated questions about whether the government could force people to buy health insurance.

Kennedy’s comment that such a mandate “changes the relationship of the federal government to the individual in the very fundamental way” was repeated over and over Tuesday.

CNN legal analyst Jeffrey Toobin described the government’s case as  a “train wreck.” He said Solicitor General Donald Verrilli Jr. appeared nervous and was unable to respond clearly to conservative judges’ assertions that Congress did not have the authority to require most Americans buy insurance.

Rep. Sander Levin, D-Mich., looked glum walking outside the court, but he rejected claims that the Obama administration failed to make its case with the justices. “I don’t think it was a train wreck,” he said, walking away.

While Lee said he was more confident the court would rule against the mandate, he said he was not ready to declare victory.

About 400 protestors were gathered outside the court, about twice as many as on Monday. Supporters outnumbered protestors by about three to one.

S.C. Attorney General Alan Wilson, a Republican, said he felt more confident the mandate would be struck down after listening to two hours of questions and comments from the justices. “The comment from the chief justice seemed to say once we allow this mandate, then the federal government is free to do anything,” he said.

Randy Barnett, a libertarian who teaches law at Georgetown University who has written reports for the conservative Heritage Foundation, predicted that whichever way the court rules, the decision would be a narrow one. “We have four members of the court going one way and four members going the other way. Those who have been saying this is going to be an 8-to-1, or a 7-to-2 decision have clearly been refuted,” he said.

6 Responses to “Pundits Parse Tough Questions By Conservative Justices”

  1. Dennis Gerber says:

    It is a shame we have a President that feels his authority usurps all of that of Congress. And, further – he only needs Congress when they agree with him. I think he is about to get his first lesson on the Constitution. This is not Obama-nation; it is still the United States of America and taxation withour representation is going to be peeled back to where it has some meaning.

  2. Beware Bias says:

    House of Cards. If the mandate goes, so does the mandate for government mortgages to require homeowners to carry insurance. So would the voter id laws then be unconstitutional. So would the forced ultrasound bills be unconstitutional. Is the Supreme Court ready for the ramifications?

  3. Katya Corbet, RN says:

    @ Dennis Gerber, First, how do you know how the president feels?? Wow I am amazed by the fact you and other conservative people don’t seem to see beyond HOW this law was created, and missing WHAT this law really means to the future of America. Yes, I agree that the process of passing the law had many flaws (and believe me, I wasn’t happy that the left side lost a few great parts!) But that’s what the president decided as the first step (of course, we will have to improve this law when it comes to as complicated as healthcare) to move the country FORWARD. People like you don’t seem to realize this country don’t have much time to fix the healthcare… :(

  4. Thomas Stenvig says:

    If anybody is waiting for a train wreck, the mother of them all will be upon us if the Supremes overturn the individual mandate in ACA. It may create just the kind of crisis we need to open the door for a single payer system. Opponents of ACA should be careful of what they wish for. There will be consequences they like even less than ACA if the law is overturned.

  5. AN RN says:

    How many business people would want to get in a business where a large and growing percentage of the product was mandated to be given away? Say an ice cream store that the government said that one out of seven could not be charge to the customer. In addition, no matter how many times the customer comes back, eats an ice cream cone and leaves with out paying you still must give him another the next time he walks in your door. That is healthcare. Next year there will be more of those who do not pay. This is why hospital bills are so high, someone must pay for the freebies. I’m not talking about those patients on Medicare and Medicaid, although the government only pays a discounted price on the ice cream cone (one that they say you must sell to them at that price) I’m talking about the ones that the hospital “eats.” Then most of the people who work in hospitals are professions with degrees. The current “miss-information” about all the nursing jobs available, is little more than an industry way to water-down the work force in order to make it a buyer’s market. Most nurses coming out of schools are having a hard time finding jobs, not to speak of desirable jobs.
    What is confussing to me is if you remember it was the Republicans (who were recieving money from insurance companies) who wanted the insurance companies included in the ACA . They add no value to health care.

  6. Katya Corbet, RN says:

    @Thomas Stenvig, You’re right about that. I like how you think. :)