It appears that the Supreme Court justices did not hear about the results of the GW Supreme Court deliberations. Key conservative justices expressed notably skepticism about the constitutionality of the health care law. The statements of Roberts and Kennedy are particularly interesting. I will also note that the continued refusal of these justices to allow cameras into the courtroom is indefensible and insulting. The fact that millions of Americans have to wait for individuals to offer second-hand accounts is a ridiculous exercise that, I believe, would have been viewed as positively moronic by the Framers.
As expected, the justice did not allow much oral argument before interrupting with questions. Kennedy was early out of the box with a question that many of us have been asking, “Are there any limits?” Here is a comment that should worry the Justice Department:
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JUSTICE KENNEDY: But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.
And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.
Another key vote, Chief Justice John Roberts suggested that there are no such limits under the government’s approach and that the government might require Americans to buy cellphones to be ready for emergencies. Then the third justice that we have discussed, Antonin Scalia asked if the government might require Americans to buy broccoli or automobiles. Returning to the limits thing, Scalia asked “If the government can do this, what else can it … do?”
That is precisely the type of questions that one would ask if you believed that future of federalism itself was at issue — a concern that I have previously raised (here and here). Of course, it is dangerous to make assumptions from the import of such questions. I have seen plenty of cases come out diametrically opposed to the position taken in oral argument by judges or justices. Certainly, these few comments or questions are not enough to strongly indicate an inclination on affirmance or reversal. Yet, Kennedy clearly indicated that, regardless of how he will vote, he views this as a game changer, noting “That changes the relationship of the individual to the federal government.”
What the transcript would suggest is that Kennedy may be the only hope for the Administration. Scalia was silent for much of the debate but his early comments showed a pretty firm view. One passage stands out where Scalia adopts a key view from the briefs of those challenging the law — that this is a regulation of insurance not health care:
JUSTICE ANTONIN SCALIA: Oh, no, it’s not. They all involved commerce. There was no doubt that was what regulated was commerce. And here you’re regulating somebody who isn’t covered.
By the way, I don’t agree with you that the relevant market here is health care. You’re not regulating health care. You’re regulating insurance. It’s the insurance market that you’re addressing and you’re saying that some people who are not in it must be in it and that’s — that’s difference from regulating in any manner commerce that already exists out there.
VERRILLI: Well, to the extent that we are looking at the comprehensive scheme, Justice Scalia, it is regulating commerce that already exists out there. And the means in which that regulation is made effective here, the minimum coverage provision, is a regulation of the way in which people participate, the method of their payment in the health care market. That is what it is.
And I do think, Justice Kennedy, getting back to the question you asked before, what — what matters here is whether Congress is choosing a tool that’s reasonably adapted to the problem that Congress is confronting. And that may mean that the tool is different from a tool that Congress has chosen to use in the past. That’s not something that counts against the provision in a Commerce Clause analysis.
JUSTICE SCALIA: Wait. That’s — that’s -it’s both “Necessary and Proper.” What you just said addresses what’s necessary. Yes, has to be reasonably adapted. Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to be proper. And we’ve held in two cases that something that was reasonably adapted was not proper because it violated the sovereignty of the States, which was implicit in the constitutional structure.
The argument here is that this also is — may be necessary, but it’s not proper because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers. And that’s what all this questioning has been about. What — what is left? If the government can do this, what, what else can it not do?
If Kennedy were in a majority with the justices on the left, he could assign himself the opinion (assuming Roberts would be in the minority). His views however are likely more narrow than the view articulated by Justice Breyer. Thus, the Court could fracture on the rationale or scope of the decision. If he were to go with the justices on the right, Roberts could assign it to himself.
Source: LA Times
I do not know much about law yet and how the Supreme Court decides but I strongly disagree with Scalia. The healthcare industry is insurance and the other way around.
“that concerns me”
Justice Kennedys last three words when it was shown that when someone goes to the emergency room for treatment and has no insurance the cost its passed on to others who do have insurance.
The government has a duty to tell the citizen he or she must purchase health care from profit driven sharks but the government has no duty to regulate the price the shark gouges out of the citizen. That must be left to feeding frenzy (I mean competition).
The usual gibberish about mandatory service in the military does not address the issue of a mandatory destructive relationship with giant profit driven, service shriven corporations. I can choose not to drive or not to own a house and thus avoid the much lesser costs of auto or home inurance. But I can’t choose not to live because my government has made doing so illegal. When you combine that law with a health care law that is totally unfunded to regulate the insurance giants, but does indeed regulate me by using my own taxes to force me to pay whatever amount the “too big to fail or to be even held accountable” insurance company wants to gouge out of me, then you start to see just where this constitutional travesty is headed.
” Of course, it is dangerous to make assumptions from the import of such questions.”
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I once had a justice of the Virginia Supreme Court exclaim during oral argument, “Mr. Esposito, how can what you are saying possibly be the law in Virginia?” A month later, that same justice wrote the opinion reversing the trial court and finding for my client.
So much for gleaning anything from questions or comments during oral argument. Like I said a lot goes on behind closed doors that have to do with everything other than the holdings in case law.
“And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way. “´
Justice Kennedy
How is it with the draft system and it’s relations to inductees. You are going to war to risk your life, young man.
And certainly other good deeds on the part of government which entail financial burden outside the tax area.
Obligatory vaccinations, School obligations. Garbage sorting. etc etc.
Car insurance. House insurance. And if it is a state imposed burden, what’s the difference. Sounds political—–but then am a dummy.
The justice’s question is dubious, but NBAL, I pass.
garyonthenet:
“He clarified that nobody would be punished for not buying health insurance if they are already covered.”
I think that is not quite accurate. I think the law demands that one have “adequate” health insurance; if one is deemed to have inadequate health insurance, one could be fined unless one makes the change to adequate insurance.
I think it’s wise not to draw conclusions from what Justices ask in Oral Argument. There ARE occasions (if not frequent) that Justices play the devil’s advocate in order to get answers to questions that other Justices may raise in their private debate about a case.
Yes, sometimes, the Justices DO tip their hands during Oral Argument and their votes do follow the line of their questions, but I think it’s best to hold one’s fire until we know for sure how they vote.
Hey JT,
How I misjudged you, or confused you with another person.
Copying what I thought I understood to be your position, here’s what I posted this morning on the Raleigh N&O editorial.on just this issue of cameras.
They agree with your views above. I stand behind mine—-saying that the media be damned, and the case is not a voting matter for the public to decide.
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“Public interest, all well and good. But the public as a pressure factor has no place in a law process. Each step must be supervised, but not subject to public vote, or equivalent. pressure.
Anyone familiar with the media’s distortion capability of selecting snips to show, with more time for the editorial comment than the event it is supposed to present, will understand the justices wish to prevent their work being subject to such treatment.
Laying speaker voice over a text or a sound bite is damage enough. That decision was the first mistake. Let’s hope for no more.
For those interested in expert commentary try this link:
http://jonathanturley.org/2012…
I believe Turley has touched on the matter of public interest versus public influence in a recent post on the public reaction to the killing of Trayvon Martin. Search there and find it, if you will.
Read more here: http://www.newsobserver.com/2012/03/27/1960893/court-tv.html#storylink=cpy
Lets bring an element of history and simple common sense to this debate. Our founders wrote and re-wrote our constitution and had contentious battles over the level of power the federal government should have. They purposely wanted a federal government with limited powers. This was not simply to appease individual states and thereby gain ratification. It was to prevent exactly what is happening today.
Now our Founders could not have envisioned this mandate for they were far more worried about states’ rights than anything like Obamacare. If they had only know, the constitution would have even more restraints on federal power.
I will be opining on this on http://www.mostly-right.com soon. Check it out. Thanks.
Jeff
The lack of cameras is insulting.
Up until this case I had thought the lack of video cameras was regrettable but a relative non-issue. Now, when one of the most important decisions facing the future of this country (no matter which side one supports) is being decided without it, it seems to seriously undermine the legitimacy of the court. Is audio-only truly access in today’s world? Precisely how out of touch is the court that they are not able to use media that is decades old?
If, people ‘do not understand the law’ as garyonthenet cites an apologist for saying, perhaps it is because the law in some ways does not understand people. Many people are visual learners and best translate information through visual mediums. But this Court denies them a clear understanding of how the law is decided by denying them meaningful access.
Change has knocked, loudly, on the Court room doors.
I predict they will throw out the purchasing mandate.
I heard on PBS New Radio a host commentator apologist say that people don’t understand the law.
He said that people misunderstand in believing they will be penalized if they don’t buy insurance even if they are already insured. He clarified that nobody would be punished for not buying health insurance if they are already covered.
Of course he didn’t clarify that if these people chose not to continue their existing health insurance, that they absolutely would be punished with a compensatory tax for that choice.
Regarding cellphones, just a reminder, though most here probably already know it.
A cellphone that has been disconnected from service can still make emergency calls. You may find it handy to have one or two “discarded” cellphones in well known places that you can get to when the murder has cut your landline.
Of course, in any real local emergency, the celltower will be swamped and you won’t be able to get through.
Coming to your cellphone is CMAS, a federally directed text messaging system including:
“Subscribers could receive up to three classes of text-based alerts, such as Presidential, Imminent Threat (e.g., tornado), and Amber Alerts.”
So, great, you will now be swamped three times a week with Amber Alerts you have no ability to do anything about.
But if you speak out about the stupidity, intrusion, and inability to turn the damn things off, it’s because you hate children.
BOND v. UNITED STATES
No. 09–1227. Argued February 22, 2011—Decided June 16, 2011
Justice Kennedy:
“Federalism has more than one dynamic. It is true that the federal structure serves to grant and delimit the prerogatives and responsibilities of the States and the National Government vis-à-vis one another. The allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States. The federal balance is, in part, an end in itself, to ensure that States function as political entities in their own right.
But that is not its exclusive sphere of operation. Federalism is more than an exercise in setting the boundary between different institutions of government for their ownintegrity. “State sovereignty is not just an end in itself: ‘Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’” New York v. United States, 505 U. S. 144, 181 (1992) (quoting Coleman v. Thompson, 501 U. S. 722, 759 (1991) (Blackmun, J., dissenting)).
Some of these liberties are of a political character. The federal structure allows local policies “more sensitive tothe diverse needs of a heterogeneous society,” permits“innovation and experimentation,” enables greater citizen “involvement in democratic processes,” and makes government “more responsive by putting the States in competition for a mobile citizenry.” Gregory v. Ashcroft, 501
U. S. 452, 458 (1991). Federalism secures the freedom of the individual. It allows States to respond, through theenactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power. True, of course, these objects cannot be vindicated by the Judiciary in the absence of a proper case or controversy; but the individual liberty secured by federalism is not simply derivative of the rights of the States.
Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. See ibid. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawfulpowers, that liberty is at stake.”
http://www.supremecourt.gov/opinions/10pdf/09-1227.pdf
Guess what…. That united tax that you see on your cellphone bill pay for cellphones for the people needing them….. It’s called universal tax…. I kid you not….
Yes Scalia…..they can force you to eat broccoli…… But not Bush1……Kegean…… They’re counting on you….. Don’t let your people down…..
Lyle Denniston Reporter
Posted Tue, March 27th, 2012 12:20
Argument recap: It is Kennedy’s call
Analysis
If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive. If he does, he may take Chief Justice John G. Roberts, Jr., along with him. But if he does not, the mandate is gone. That is where Tuesday’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior.
If the vote had been taken after Solicitor General Donald B. Verrilli, Jr., stepped back from the lectern after the first 56 minutes, and the audience stood up for a mid-argument stretch, the chances were that the most significant feature of the Affordable Care Act would have perished in Kennedy’s concern that it just might alter the fundamental relationship between the American people and their government. But after two arguments by lawyers for the challengers — forceful and creative though they were — at least doubt had set in. and expecting the demise of the mandate seemed decidedly premature. SCOTUS blog
Viva federalism!
The tapes are being played on CSPAN3 in a few minutes. Will listen to them.