Obamacare, Day Two

Today was the second of three days of scheduled testimony for The Department of Health and Human Services v. Florida, otherwise known as the Obamacare case.  Carrie Severino at NRO Bench Memos has some thoughts on day two:

Solicitor General Verrilli had a rough start to his argument, speaking haltingly, stumbling, and stopping to take a drink.  The solicitor general spent almost all his time trying to convince the justices that health care is, in fact, different from other markets. While Justices Ginsburg and Kagan were trying to throw him soft balls, Verrilli kept striking out with Justices Scalia, Roberts, and Alito, and to some extent, Kennedy.

Justice Kennedy was particularly concerned because, as he put it, the government bears a “heavy burden of justification” when a law “changes the relationship of the individual to government in a unique way.”  From my reading, General Verrilli didn’t ultimately convince them, and Justice Kennedy returned to the issue several times.  He asked whether the administration’s argument had any limits “at all,” and noted that the mandate “requires the individual to do an affirmative act,” a completely novel type of law. 

The Chief Justice and Justice Scalia were most vocal on this issue, the Chief declaring that “all bets are off” if they accept the expansive interpretation advanced by the administration.  

[...]

Justice Ginsburg, unsurprisingly, sent clear signals that she accepted the administration’s position. While she agreed that the mandate is a form of cross-subsidization, she was untroubled by this, given the cost-shifting that happens due to uncompensated health care.  

Justice Breyer was perfectly comfortable with Congress creating commerce ex nihilo, a position even the solicitor general went to great (and, I believe, illogical) lengths to distance himself from. The solicitor general insisted on making the demonstrably false statement that the mandate in fact is not “creating commerce,” but is regulating actual market participants.

You can read the whole thing here.

So far, it seems that Chief Justice Roberts and Justices Alito, Scalia, and Thomas will be one one side.  Justices Breyer, Ginsburg, Kagan, and the wise Latina Justice Sotomayor will make up the other bloc.  As Charles Krauthammer recently noted, these important cases always seem to "depend on whatever side of the bed Justice Anthony Kennedy gets out of that morning."  Scary.  But at least the other branches can interpret the Constitution as they see it.  After all, we are somewhat still a republic--not a judicial oligarchy.