The foggy memories of my law school constitutional law course were quickly revived when I listened to the historic arguments presented at the Supreme Court last week.
My favorite moments included:
- When Justice Roberts, failing to hear a compelling annunciation of a "limiting principal" from the solicitor general, declared something like, ""All bets are off if we uphold this,"
- The conservative justices seemed to accept the argument that Medicaid expansion is coercive to the states (even though the federal government is paying for 90% of the cost). Most interesting was when, Justice Kagan, picking up on this Medicaid issue said: 'If you're right Mr. Clement, doesn't that mean that Medicaid is unconstitutional now?' and Clement responded by saying 'Not necessarily.' Wow! What is going on here? One would expect the answer to be no, given the broad interpretation the Supreme Court has given to the Commerce Clause since 1936. Listening closely, one could almost hear the "wings" of Congress being clipped.
- Interesting on how the solicitor general danced around the issue of whether the payments to the federal government for failure to purchase health insurance were a tax or a penalty. Clearly, the Democrats had little took to maneuver here. Although labeling the payment as a tax would have placed the law clearly within the purview of Congress's taxing authority, politically it was a non-starter. Blue Dog Democrats would never have supported a tax increase, so the "tax" became a "penalty" and the solicitor general was stuck. Hilarity ensued when, responding to Robert's inquiry on why didn't Congress simply call it a tax, the solicitor general said, 'Well, you know they called it a penalty because maybe they thought that would be more clear or something...' Right.
- The solicitor general had a devil of a time trying to explain how one's pure existence placed oneself in the stream of interstate commerce when it comes to the issue of health insurance and that by passing this Act, Congress did not create a market in order to regulate it, but rather the market (health care) was pre-existing. The conservative justices did not seem to agree and the liberal justices were trying to throw some life lines to a hapless solicitor general. Was it Justice Kennedy, who at this point, analogized these facts to the funeral industry?
What were your favorite moments from the three days?
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