Day 2 at the Supreme Court: The Individual Mandate is Twisted and Pulled but What Side is Winning?!

John Fisher
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Again—we are in the middle of history!  I know yesterday I would share a case with you also handed down by the Supreme Court today, but I think I will hold that off until Thursday.  The Affordable Care Act oral arguments are just TOO important to pass up.  I really hope everyone is following these arguments at the Supreme Court.  They have truly erupted a maelstrom of attention as people have been waiting since last Friday to hear the arguments yesterday, today, and tomorrow!

Today’s arguments were on the individual mandate which is the crux of the Affordable Care Act.  The Supreme Court, somewhat unsurprisingly, broke down along partisan lines with four of the more liberal Justices defending the constitutionality of the act and the other four more conservative Justices attacking the credibility of the Affordable Care Act inferring that it is unconstitutional.  Justice Kennedy, who is renowned for being a swing vote, also attacked the constitutionality of the Act and hinted that he thought it was also unconstitutional.  Therefore, many analysts are saying, if today’s oral arguments were dispositive, the Act would be unconstitutional. 

Essentially, the main argument against the Affordable Care Act was that it is, for the very first time ever, requiring Americans to buy something so that it can be regulated.  This is a groundbreaking issue and never before heard in the Supreme Court.  For the transcript, click here to read it: http://s3.documentcloud.org/documents/328458/supreme-court-health-care-argument-03272012.pdf.

But this doesn’t mean that it is decided and over as unconstitutional.  Once arguments are over, the Justices will go to their chambers and discuss the case ad nausem.  They will begin to write their opinions and speak with their clerks then trade them amongst each other.  This is when minds change, and opinions will get swayed.  One of the most common Justice this happens to is Justice Kennedy and, to a lesser extent, Chief Justice Roberts.  That could easily make the Affordable Care Act constitutional again.

This is particularly likely here because the attorney in support of the Affordable Care Act, Solicitor General Donald B. Verrilli Jr., really got knocked around according to some witnesses.  On the contrary, Paul Clement, who argued against the Affordable Care Act, was said to have given one of the best arguments ever witnessed by the Supreme Court watchers who run the SCOTUS Blog.  Oral arguments are all about presentation, but the Justices will interrupt and pepper even the most seasoned and perfect attorneys.  In this case, where it is apparent that one advocate was much better than another, the briefs and legal research is what will really balance out the issues.

Tomorrow is another very important day in the litigation and nothing has been decided right now.  The severability of the individual mandate is next up, and again tomorrow I will provide some insight and opinion on what happens!

But what do you think?  I would love to hear from you!  I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at [email protected]  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com
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