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While the Supreme Court’s decision Thursday to save the heart of Obamacare surprised much of the public, the justices dropped a few hints during oral arguments about the fate of health reform.To be sure, conservative Chief Justice John Roberts gave little if any indication that he would uphold the mandate as essentially a tax.
But it was clear from the oral arguments that he wanted to put a serious dent in Obama’s Medicaid expansion.
If you read the arguments closely, it’s also fairly apparent that Anthony Kennedy wanted to kill it all.
Even though Roberts saved the core of health reform, he slashed a significant portion of Obamacare's Medicaid expansion.
Under Roberts' opinion, the federal government can't threaten to take away states' Medicaid funding if they choose not to expand that program.
And he revealed part of that sentiment during oral arguments.
The federal government 'has the authority under the provision to say, you lose everything,' Roberts said, during oral arguments. 'No one has suggested in the normal course that will happen; but, so long as the federal government has that power it seems to be a significant intrusion on the sovereign interests of the state.'
And he also raised questions about whether the rest of the overhaul could survive if the Medicaid mandate was struck down.
'But what if there isn't a Medicaid expansion?' Roberts said. 'We've talked about the individual mandate, but does the government have a position on what should happen if the Medicaid expansion is struck down?'
Swing voter Justice Kennedy, who ultimately voted to kill Obamacare, also seemed to oppose the insurance mandate.
During oral arguments, wild card Justice Kennedy seemed to indicate that allowing the government to use its commerce clause powers to force people to buy insurance would be a radical move.
'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,' Justice Kennedy asked the federal government. 'If that is so, do you not have a heavy burden of justification?'
'I understand that we must presume laws are constitutional,' he added, '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 authorization under the Constitution?'
But maybe that shouldn't have come as such a surprise, given Kennedy's observation during oral arguments that the law wouldn't have been able to survive without the mandate.
Striking just the mandate would 'impose a risk on insurance companies that Congress never intended,' he said.
'By reason of this court, we would have a new regime that Congress did not provide for, did not consider,' Kennedy added. 'That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike ... than striking the whole.'
Meanwhile, it was pretty clear all along that Scalia wouldn't buy the argument that the mandate was essentially a tax.
During oral arguments, Scalia asked the lawyer for the federal government, 'Is it a tax or isn't it? The president didn't think it was.'
Solicitor General Don Verrilli replied that the insurance mandate was justified under the federal government's taxing authority.
'OK. Extraordinary,' Scalia replied.
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