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Three Days Of Healthcare Hearings Wrap With Tough Questions For Supporters

10:38 PM, Mar 28, 2012   |    comments
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U.S. SUPREME COURT (WUSA) - It's been a rough three days here for Obamacare.

In the final day of hearings on the Patient Protection and Affordable Care Act, the Supreme Court's conservative majority seemed to take very seriously the argument that if the individual mandate is unconstitutional, the Court must overturn the whole law.

The deeply divided court is also considering the argument by more than half the states that forcing them to pay for Medicaid violates the fundamental principals of federalism. 

How bad have the three days of hearings been for the Obama Administration and health care reform? CNN Legal analyst Jeffrey Toobin said it's been a "train wreck." "The individual mandate looks doomed to me. And the whole law is in some trouble."

And the lead lawyer for health care's opponents seemed in a jovial mood. "So you feel pretty good about it?" I asked Paul Clement. "I feel pretty good it's over and I don't have to wake up tomorrow and do it again."

Not that completely avoided tough questions. Even conservative Justice Antonin Scalia asked him if the whole law had to fall if some small part of it fell. "You're telling us that the whole statute would fall because the cornhusker kickback is bad? That can't be right."

But of course the debate is NOT about a cornhusker break for Nebraska residents designed to win the vote of their skeptical Senator.

It's about the requirement that nearly every American prove she has health insurance -- or face a penalty. And on that Scalia took a very different position. "My approach would say, if you take the heart out of the statute," said Justice Scalia, "the statute's gone."

Swing vote Anthony Kennedy suggested picking and choosing between sections of the law would dump billions of dollars in additional risk on the insurance companies. "That it seems to me can be argued at least to be a more extreme exercise of judicial power than striking the whole."

Even the Chief Justice -- who some observers thought could be swayed -- suggested to the Obama Administrations lawyer that he was reluctant to wade into the financial mess of leaving parts of health reform standing if the Court overturns the individual mandate.

Edwin Kneedler/Deputy Solicitor 41:28 "We don't think it's in the court's place to look and budgetary implications," said Obama Administration lawyer Edwin Kneedler, before Chief Justice John Roberts cut him off. "Isn't that the point? Then why should we just assume that it's not severable?" Not severable means the whole law has to be tossed out.

Swing vote Anthony Kennedy suggested picking and choosing between sections of the law would dump billions of dollars in additional risk on the insurance companies.  "That it seems to me can be argued at least to be a more extreme exercise of judicial power than striking the whole."

The court's liberals went the other way, suggesting it would be far more intrusive for the court to throw out the whole law than leave in place parts that have nothing to do with the individual mandate. "Why in a democracy structured like ours, where each branch does different things," said Justice Sonia Sotomayor, "why we should we involve the court in making the legislative judgement?"


 CNN's Toobin did soften his line that the Administration's argument was a "train wreck." And Senate Majority Leader Harry Reid said you can read too much in to the justices' questions.

But health care supporters will have to convince one member of the court's conservative majority that the individual mandate is constitutional. And it's not clear they have.

Written and Reported by Bruce Leshan
9News Now & wusa9.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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