Noam De Plume (@SaltyCon) March 25, 2012
Starting Monday, attorneys representing 26 states, the National Federation of Independent Business, and a few others, along with two attorneys appointed by the court itself, will argue before the Supreme Court of the United States that the the Patient Protection and Affordable Care Act (more commonly known as Obamacare) is unconstitutional. They will be opposed by U.S. Solicitor General Donald B. Verilli, Jr., and another lawyer from the government.
The court has decided to spread the arguments out over three days, with a total of six hours of oral argument. On Monday and Tuesday, each side will address one particular and pertinent part of the issue and Wednesday, the lawyers will cover two subjects. The Heritage Foundation has provided an excellent summary of what we can expect on each day, but we’d like to summarize each day’s events to make following the arguments that much easier. Do read over Heritage’s post for more details.
- Monday (90 minutes): Can the law be challenged under the Anti-Injunction Act?
- Tuesday (2 hours): Can Congress compel individuals to buy a particular product?
- Wednesday (90 minutes): Can Obamacare survive without the individual mandate?
- Wednesday (1 hour): Does the expansion of Medicare by Obamacare violate the principles of federalism?
The real action in SCOTUS is likely to come Tuesday. Monday’s argument is largely technical and much of the discussion will revolve around whether the fees involved with Obamacare constitute a tax or not. The administration has, over the past two years, taken both sides of the issue. This week, though, the government has decided the fees are not a tax and so the court-appointed attorney will argue that side, so the court can fairly decide on the matter. Wednesday’s early argument will cover the second most contentious issue — whether the individual mandate is severable from the rest of the law and, if so, how much of Obamacare can survive without it.
We at Twitchy will cover any news from SCOTUS as it shows up on Twitter first and fastest, so stay here for the news as it arrives!
Click on the link for audio — available at approx. 1p.m. Eastern Monday:
One hashtag for this week’s hearings seems to be #ACAhearings. Follow obvious hashtags #obamacare and #scotus for wider Twitter commentary/coverage — or just check out our related tweets sidebar.
Top six SCOTUS/Obamacare Twitter streams to follow:
@philipaklein (the Examiner’s health care reporter will be in the courtroom for the hearing)
@VolokhC (account of the libertarian constitutional lawyer’s group blog)
@MicheleBachmann (she’ll be in the courtroom for the hearing)
@GregAbbott_TX (the Texas attorney general will be live-tweeting hearing)
@ddmcpherson (this guy is standing in line to get into the hearing)
The New York Times spotlights the line-standers:
Monica Haymond, a 23-year-old legal assistant who passed the time by watching episodes of “Dr. Who” on her laptop, lined up after work Friday — 63 hours before arguments were to begin. “We were hoping to be the first people here, but apparently it was more competitive than we had ever imagined,” she said.
The first two in line declined to be interviewed, and others identified them as paid placeholders.
In Washington, anyone who wants to attend a judicial or Congressional hearing and can afford to spend $36 to $50 an hour can hire professional “line standers” through companies like Washington Express to do the waiting for them. LineStanding.com, which had people waiting outside the court over the weekend, lets customers choose how early they want their surrogate to arrive, including an option labeled “please put us at the front of the line.”
More recommended Twitter follows:
Pols weighing in over the weekend:
Update: Got your lab coats on?
I spoke to David Hogberg of Investors’ Business Daily, and Randy Barnett, constitutional law professor at Georgetown, and originator of the legal arguments against the mandate. Here are my notes on my quick phone conversations with the two of them.
David Hogberg: “They all pretty much came down on the penalty side. There was some aggressive questioning as to why this is not a tax, but you never really got the sense that any of them wanted to use the AIA to avoid the case for the time being.
“Even some of the more liberal justices, Robert Long, who was the outside attorney who argued the tax portion, they hit him pretty hard. You could tell by the questions that they were asking, they just didn’t buy that this was necessarily a tax.
“The best that Long could come up with is, that it’s collected like revenue [by the IRS], but they weren’t buying it.”
Randy Barnett: “They looked as unanimous as they could possibly look on the case.” I asked Randy: if it’s so obvious that the mandate is a penalty, and not a tax, why did they bother to spend 90 minutes examining it? “It was absolutely essential that they hear the arguments, once the Fourth Circuit ruled that it was a tax. Law professors would have jumped all over them.”
More analysis from SCOTUSblog:
When Chief Justice John G. Roberts, Jr., commented at the end of Monday’s first day of hearings on the health care law, “We’ll continue argument on this case tomorrow,” it seemed to have a secondary meaning even if he did not intend it. The comments and questions of the Justices during the 89-minute exchange left the distinct impression that they are prepared to rule on the constitutionality of the mandate that individuals must buy health insurance, and not push the issue off into the future. The exact route they would take was a bit uncertain, but their skepticism about taking a pass now was clear.
That did not mean, of course, that the Court would ultimately uphold the mandate. That is tomorow’s question, although the Justices asked many questions about the mandate, showing they are curious about its scope and meaning. But an argument that at times seemed almost to bog down in the dense complexity of the tax code pointed toward a refusal to bar the lawsuits that had challenged the mandate and had put its survival before the Court this week. One of the telltale signs of that sentiment was that not one Justice, and no lawyer at the lectern, said that it would be premature and a contradiction of the Court’s tradition against deciding constitutional issues prematurely for the Court to rule promptly on the mandate’s validity.
And from the leading legal scholar challenging the individual mandate: