by Jason Williams, Tue Mar 27, 2012 at 06:41:03 PM EDT
After initial arguments yesterday, the Supreme Court today slogged headlong into the meat of the arguments for and against the Affordable Care Act mandate (transcript and full audio via NPR).
SCALIA: “Could you define the market — everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.”
VERRILLI: “No, that's quite different. That's quite different. The food market, while it shares that trait that everybody's in it, it is not a market in which your participation is often unpredictable and often involuntary. It is not a market in which you often don't know before you go in what you need, and it is not a market in which, if you go in and — and seek to obtain a product or service, you will get it even if you can't pay for it.”
Challengers are already cheering the demise of the mandate, and SCOTUSblog's Lyle Denniston confirms this is going to be Justice Kennedy's case to call. But where Kennedy is may be up in the air (emphasis mine):
“So,” Breyer said, “I thought the issue here is not whether it’s a violation of some basic right or something to make people buy things they don’t want, bujt simply whether those decisons of that groujp of 40 milliion people substantially affect the interstate commerce that has been set up in part” through a variety of government-sponsored health care delivery systems. That, Breyer told Carvin, ”the part of your argument I’m not hearing.”
Carvin, of course, disputed the premise, saying that Congress in adopting the mandate as a method to leverage health care coverage for all of the uninsured across the nation. Kennedy interrupted to that that he agreed “that’s what’s happening here.” But then he went on, and suggested that he had seen what Breyer had been talking about. “I think it is true that, if most questions in life are matters of degree,” it could be that in the markets for health insurance and for the health care for which insurance was the method of payment “the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in the case.”
More interesting, was yesterday a setup? As David Dayden has pointed out: yesterday every Justice agreeing a mandate was not a tax under Anti-Injunction, today Obama's SG arguing it's just like a tax to Congress.
And the politics around of it all. Roll Call has 5 races where health care will matter either way, and why Democrats will make this about RyanCare. Senate Republicans are squealing tires in reverse, hoping everyone forgets "Replace" is a word. For Obama, it could be win-win. Mandate struck down, Republicans lose a major rallying point for the general election, Democrats may gain one (Activist judges!). Robert Reich sees Obama positioned well for Medicare for All if the Affordable Care Act unravels. And somewhere, Lil' Ricky and the Newt are firing up the attack ads on Romney.
Tomorrow's arguments: Mandate "what-ifs" and the Medicaid expansion.