Today was day 2 in the Supreme Court's 3-day hearing over the constitutionality of Barack Obama's healthcare reform.
Specifically, legal opponents of the law claim that the so-called "individual mandate" which requires everyone to buy health insurance is unconstitutional because the government shouldn't be able to mandate people buy a product.
The verdict from the experts is that today was a disastrous day for the Obama administration, and that the justices took a very hostile line of questioning towards the administration.
Well you don't need to be a legal expert to see why today was such a setback.
The transcripts are available, and right off the bat you can see what the trouble is.
Check out this pivotal question from Justice Kennedy, who is often seen as a "swing vote." Obama almost certainly needs his vote.
JUSTICE KENNEDY: Could you help -- help me with this. Assume for the moment -- you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification? I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show
When the court's swing voter is telling you that you have such a heavy burden of justification, that's a problem.
Obama's Solicitor General (the title of the attorney that argues on behalf of the administration at The Supreme Court) Donald Verrilli Jr. answers the question by arguing that healthcare is unique because you need to have insurance before the point of sale ... before the point where you're technically entering the market.
Verrilli then faces some hard questioning from Scalia about defining entry and exit from the health insurance market, and he brings up the great broccoli example ...
JUSTICE 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.
Verilli then stumbles through an argument about why the food and healthcare market comparison was bad, and you know he stumbled through it because one of the Court's most liberal judges felt the need to come in for a rescue, making his argument for him.
JUSTICE GINSBURG: Mr. Verrilli, I thought that your main point is that, unlike food or any other market, when you made the choice not to buy insurance, even though you have every intent in the world to self-insure, to save for it, when disaster strikes, you may not have the money. And the tangible result of it is -- we were told there was one brief that Maryland Hospital Care bills percent more because of these uncompensated costs, that families pay a thousand dollars more than they would if there were no uncompensated costs. I thought what was unique about this is it's not my choice whether I want to buy a product to keep me healthy, but the cost that I am forcing on other people if I don't buy the product sooner rather than later.
So there you go. You have the swing vote making a hard argument against the government mandate, and you have a liberal judge trying to resuscitate the Solicitor General by making his argument for him.
Listen below to to Solicitor General Verrilli nervously starting his opening argument on individual mandate (around 25 sec mark):
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