Consensus seems to be that the oral arguments on the constitutionality of the health care law did not go well today. Couple things:
1. Beware groupthink. I only skimmed some of the transcript and comments. But it didn’t sound THAT bad.
2. Oral arguments just don’t matter that much. It’s a small window into the thought process of these people. But even there, it’s pretty guarded. Particularly for someone like Kennedy – whichever way he comes down on it, he’s going to be very sensitive to how it will look. So making sure he’s picking at the weak parts of the argument is going to be important to him, so he knows what he has to justify.
3. Some of the worst things today had to do with the apparent lack of understanding (or belief) that the mandate is necessary for the broader function of the law. There’s a decent chance that this argument will get pushed more forcefully tomorrow when they discuss separability.
4. That said, it is kind of a bummer.
It’s a T debate where all the aff has to do is prove it has a principled counterinterpretation that doesn’t unlimit the topic. I think the conservatives signaled some willingness to allow that law so long as they can be convinced there’s CI. But Verilli sucked at that.
The “necessary and proper” argument has two problems: (1) it’s only necessary because the government created the problem that made it necessary (this is ridiculous to me — the only reason banning local growing of pot was necessary was b/c the government created the problem of enforcing the war on drugs . . . but Verilli was exceptionally weak on this issue); and (2) even if necessary, it’s not “proper” if the power would swallow the commerce clause/10th amendment limitations. So again, aff just needs to set some kind of principled limit. And it needs to be a very clear and simple story on that limit. And that’s where Verilli failed. It’ll be up to Sotomayor/Breyer/Ginsburg/Kagan to convince the others that there’s such a limit.
On groupthink, I agree with you. It’s why the groupthink at the beginning of all of this that there’s no chance SCOTUS will overrule health care was wrong.
What’s so bizarre to me is that it seems like everyone admits the government could simply take over health care and tax everyone to pay for it. That’s a much more intrusive exercise of governmental power over interstate commerce than Obamacare. Now, the “greater power includes the lesser power” style of argument is one that many con law professors routinely trick law students into making in order to make fun of them for having made it. But even if it’s legally vacuous, it’s important philosophically/politically. The story that’s being told here is important. If SCOTUS does overrule the law, it’s not because it’s so intrusive on individual liberty. They’d be saying that Congress would eliminate private health care entirely and replace it with a public system. Not sure what exactly to conclude from that, but it’s an example why the story that this case is all about big gov’t vs. the people is really way too simplistic.
Yeah, I guess I’m coming around on the possibility that my total dismissal of this as a meaningful concern was also groupthink. But, at the very least, I was part of groupthink within the legal academic circles. And in a certain sense, the groupthink of legal academics IS the law. It’s still very rare for the SC to completely buck that.
The thing that IS frustrating about the time they spent on this is just how much of it was on very very conservative terms. Very little time spent discussing precedent. Lots of time on broccoli and freedom, etc. It does seem like that’s almost the biggest sticking point for Kennedy, in which case your point does seem wholly appropriate.
I still predict a low-point win for the government. I don’t think Kennedy is willing to scrap the entire law – and if he wants to strike down the mandate anyways, it’s going to be up to him to explain how it can happen. And the liberal wing is going to keep telling him ‘our whole argument is that it doesn’t work! That’s the point!’
But we’ll see, I guess.
But the problem was that the people doing the groupthink at the time weren’t the people who actually study the commerce clause. And they were just giving a knee-jerk reaction. Kind of shameful on their part, actually. They should’ve known better.
I’m hoping for a LPW as well. But I completely agree with you that it’s so frustrating how this has turned into broccoli and freedom, when it’s supposed to be about feds vs. states. Ugh.