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Powered by Guardian.co.ukThis article titled “Supreme court health care day 3 – live” was written by Jim Newell, for guardian.co.uk on Wednesday 28th March 2012 18.45 UTC

2.44pm: And the second session of the day has adjourned – the Most Important Legal Proceeding Since The Trial Of Jesus Christ is over! Let’s see if worrywart Jeffrey Toobin escaped before his head exploded:

Toobin will survive. Again: Toobin will survive. The healthcare reform law though? We’ll have to wait a couple of months before we know about that.

2.31pm: Another thing to keep in mind about the “severability” of the individual mandate: legislators didn’t (forgot to?) include a “severability clause” in the healthcare law, which would have prevented the court from throwing out the whole bill if it found one provision – such as, say, an individual mandate – unconstitutional. That doesn’t mean it is obligated to throw out the whole bill if there’s one one provision it finds unconstitutional, and doing so would be a radical act. But if the whole thing was tossed, Democratic lawmakers would deserve part of the blame for their carelessness.

 

2.16pm: In the afternoon session, Paul Clement tried to argue that the provision for states to expand their Medicaid programs, a part of the bill expected to bring coverage for 15 million low-income Americans and children, unfairly coerces the states. The way the program would work: The federal government would pick up the states’ full tab for new enrollees through 2014, after which it would pick up a mere 90%.

This “coercion” claim is expected to be Clement’s most challenging argument, and as the Wall Street Journal liveblog notes, liberal justices were all over him as this afternoon’s session began. Stephen Breyer, for example:

Justice Stephen Breyer, meanwhile, has been hitting Mr. Clement hard on his most central claim: that the federal government will force states to leave the Medicaid program entirely if they don’t go along with the expansion under the health law. States say that they are afraid that this will destroy their budgets, which rely heavily on Medicaid funds.

Justice Breyer says that that isn’t the case — it’s up to the Health and Human Services Secretary to decide whether to kick them out altogether, and administrative law requires the secretary and other federal government officials to act reasonably, he argues. “Now, does that relieve you of your fear?” he asked.

1.51pm: Meanwhile, on the campaign trail, Rick Santorum just wants to be left alone with his lunch.

 

1.46pm: The court’s audio and transcript (PDF) from this morning’s session are online.

1.29pm: Our correspondent Chris McGreal lined up at 4am to be sure of a seat in court today. Here’s his take:

Wednesday morning’s session boiled down to dueling between the court’s liberal and conservative justices over who should have the authority to decide the fate of the rest of the health care legislation if its core, mandatory medical insurance, is ruled unconstitutional. Justice Scalia was the most aggressive in pressing the idea that it is not up to the supreme court to wade through the remainder of the legislation to decide what should remain and what should not.

He appeared firmly in favour of striking down the whole law if the individual mandate is declared unconstitutional – and gave a clear sign that he thinks it is when he argued that it would be better to throw out the whole law and let Congress begin again.

“Whether we strike it all down or leave some of it in place, the congressional process will never be the same. One way or another, Congress is going to have to reconsider this, and why isn’t it better to have them reconsider it – what – what should I say – in toto, rather than having some things already in the law which you have to eliminate before you can move on to consider everything on balance?” he said.

Some of the more liberal judges were open to the idea that it need not be the end of the health reform law. Justice Sotomayor suggested that if the individual mandate is ruled out, the rest could he allowed to stand while Congress amends the legislation to make it workable.

Justice Kagan said the legislation did not have to be perfect for it to be viable. She said the law was in any case a compromise reached in Congress. “And the question is always, does Congress want half a loaf. Is half a loaf better than no loaf?” she said.

Justice Breyer argued that there are many aspects of the legislation not directly related to the individual mandate. “I would say the Breast Feeding Act, the getting doctors to serve underserved areas, the biosimilar thing and drug regulation… those have nothing to do with the stuff that we’ve been talking about yesterday and the day before, okay? So if you ask me at that level, I would say, sure, they have nothing to do with it, they could stand on their own,” he said.

1.16pm: So the takes following this morning’s session don’t seem as gloomy for the law’s prospects as yesterday, but it was still hardly a walk in the park for the government’s lawyers. The four liberal justices seem intent on preserving the law even without an individual mandate – although, as we gleaned yesterday, they’re also intent on preserving the individual mandate. Justice Scalia, meanwhile, sounds eager to destroy the entire law with a sledgehammer as soon as possible, for various constitutional and political and congressional procedure-based reasons (whatever works, basically.) Justices Roberts and Kennedy simply would like to ask more questions, and perhaps play devil’s advocate on occasion, to mess with our heads.

The key issue is to what degree removing the individual mandate would disrupt interlocking parts of the bill. Scalia best exemplified the absolutist’s take: “My approach would be to say that if you take the heart out of this statute, the statute’s gone.” This neatly echoed the argument of the plaintiff’s lawyer, Paul Clement, who put it, “If the individual mandate is unconstitutional, then the rest of the act cannot stand.”

Perhaps there’s a bit of nuance the absolutists overlook, however? The individual mandate may be the heart of the health insurance finance mechanism in the law – if you require insurers to offer coverage to applicants with pre-existing conditions, then you need a lever for universality that keeps healthier folks in the risk pool to prevent the so-called health insurance “death spiral”, while offering generous government subsidies to further induce them into participation. But if the individual mandate was struck down, wouldn’t this just leave a bad, ineffective public policy in its wake that Congress would have to clear up (some way, somehow?) Some would say that the United States government has plenty of bad public policies in place, but that doesn’t mean they’re the concern of the supreme court.

And even if the mandate/pre-existing conditions/subsidies interlocking complex was excised, much of the rest of the bill – the set-up of state health insurance exchanges, high risk pools, the expansion of Medicaid, and more – could still stand without leading to the collapse of the healthcare market.

Of course, the afternoon session will deal the federal government’s ability to hoist healthcare mandates upon the states, so the conservative justices could simply rule all of the other stuff unconstitutional too.

12.39pm: Just like Chief Justice Roberts, Justice Antonin Scalia seems unusually concerned congressional vote-counting, which – last we checked – is not his job as an arbiter of constitutionality. It sounds like he, and others on his side, might be looking for an excuse to invalidate the whole law as a practical necessity:

12.26pm: The Romney press shop has sent out a notice that former president George HW Bush will endorse Mitt Romney in Houston today, just as he did back in December. Now it is super-official, though, we guess. He now leads his son, former President George W. Bush, 2-0 in total Mitt Romney 2012 presidential endorsements.

12.25pm: Apparently we had some argumentative comedy today, during the president’s alleged train/plane wreck inside the Supreme Court:

Who hit who with the chair or the barbed wire? These Supreme Court justices play too many violent video games.

12.16pm: Lyle Denniston at SCOTUSblog has an interesting, practical take – that some justices may not be interested in striking down the individual mandate alone because it would be too much of a pain to figure out what to do afterwards:

The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that. A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress.

12.08pm: The morning session has adjourned. Here’s CNN/New Yorker legal analyst Jeffrey Toobin, giving his latest apocalyptic, sky-is-falling tweet that will terrify Obamacare supporters for the rest of the day whether it has merit or not:

11.59am: The Los Angeles Times has the latest from inside, and its take, at least, is that conservative justices want to tear down the whole law if the individual mandate is invalidated. Oh, they’re feeling frisky today:

The Supreme Court’s conservative justices said Wednesday they are prepared to strike down President Obama’ s health care act entirely.

Picking up where they left off Tuesday, the conservatives said they thought a decision striking down the individual mandate means the whole statute should fall with it.

The court’s conservatives sounded as though they had determined for themselves that the 2,700 page law must be declared unconstitutional.

“One way or another, Congress will have to revisit it in toto,” said Justice Antonin Scalia.

Agreeing, Justice Anthony Kennedy said it would be an “extreme proposition” to allow the various insurance regulations to stand after the mandate was struck down.

11.38am: Longtime Democratic Representative Bobby Rush was kicked off the House floor this morning for donning a hoodie in honor of dead Florida teen Trayvon Martin. Rush supposedly violated chamber rules against wearing hats. Hats!

 

11.31am: The Wall Street Journal live blog, fed by its reporters in the Supreme Court indicates that things are, again, shockingly, breaking down along ideological lines!

Liberal justices are making a strong case for “salvaging” the law even in the event of the individual mandate being ruled unconstitutional; and Chief Justice Roberts – considered, along with Justice Kennedy, one of the two conservative justices who remain open to upholding the law – is exploring another, well, another option:

Chief Justice John Roberts has asked several questions of Mr. Clement that further the case for striking down the whole law, and echo other remarks from Justices Alito and Scalia.

He has suggested that the whole of the health-law should be considered to be linked to the individual mandate because its myriad of other provisions, such as black-lung payments, were actually included as sweeteners to pass the main bill. Without them, Congress “would not have been able to cobble together the votes to get it approved,” he said.

So now Chief Justice John Roberts fancies himself the House Majority Whip, checking out vote counts?

11.14am: Supporters of the health care law – or at least defenders of its constitutionality – dug up all the bitterness they could muster in some sweeping reactions to the liberals’ rough day in court Tuesday.

Slate legal writer Dahlia Lithwick, for example, nearly gave up on modernity, community, and hope altogether:

This morning in America’s highest court, freedom seems to be less about the absence of constraint than about the absence of shared responsibility, community, or real concern for those who don’t want anything so much as healthy children, or to be cared for when they are old. Until today, I couldn’t really understand why this case was framed as a discussion of “liberty.” This case isn’t so much about freedom from government-mandated broccoli or gyms. It’s about freedom from our obligations to one another, freedom from the modern world in which we live. It’s about the freedom to ignore the injured, walk away from those in peril, to never pick up the phone or eat food that’s been inspected. It’s about the freedom to be left alone. And now we know the court is worried about freedom: the freedom to live like it’s 1804.

The New Yorker’s John Cassidy gave up on humanity, calling the case “a bad joke”:

But, of course, this case isn’t ultimately about the law—it is about politics. The four ultra-conservative justices on the court—Alito, Roberts, Scalia, and Thomas—are in the vanguard of a movement to roll back the federal government and undermine its authority to tackle market failures. The movement began in the nineteen-eighties, when the Federalist Society got its start and Ronald Reagan appointed one of its members, Scalia, to the court—and for thirty years it has been gathering strength.

Thus the creation of a new legal theory to sink Obamacare: the idea that while the federal government might well have the authority to regulate economic activity, it doesn’t have the right to regulate inactivity—such as sitting around and refusing to buy health insurance. Now, it is as plain as the spectacles on Antonin Scalia’s nose that opting out of the health-care market is about as realistic as opting out of dying. But necessity is the mother of invention. And, judging by his questions this morning, it is this invention that Kennedy has fastened on.

As I said at the beginning, it’s a bad joke—upon us all.

And Mother Jones’ Adam Serwer poured a few tons of salt into Solicitor General Donald Verrilli’s wounds:

Stepping up to the podium, Verrilli stammered as he began his argument. He coughed, he cleared his throat, he took a drink of water. And that was before he even finished the first part of his argument. Sounding less like a world-class lawyer and more like a teenager giving an oral presentation for the first time, Verrilli delivered a rambling, apprehensive legal defense of liberalism’s biggest domestic accomplishment since the 1960s – and one that may well have doubled as its eulogy.

Reactions on the conservative side, meanwhile, are all more or less in line with that of Senator Ron Johnson, who apparently thought he was watching Braveheart during the hearing:

10.43am: Mitt Romney is now even more deeply engaged in a spat with Russian President Dmitri Medvedev, writing at Foreign Policy, “It is not an accident that Mr. Medvedev is now busy attacking me. The Russians clearly prefer to do business with the current incumbent of the White House.” As president, Mitt Romney will… never do business with Russia, or something.

9.57am: If you’re looking to kill a few hundred hours reading something, The New York Times Magazine’s Matt Bai has written an impossibly detailed 10,000-word account of how last year’s debt ceiling negotiations between President Obama and Speaker John Boehner went. (They went poorly.)

9.45am: Good morning. This is Jim Newell in Washington, ready to cover the final day of oral arguments in the Supreme Court health care case, and assorted other political item. There will be two sessions at the court today. At 10am, justices will hear arguments relating to whether the whole health care law should be struck down if the individual mandate is found to be unconstitutional. The second, at 1pm, deals with the health care law’s Medicaid expansion and issues of states’ rights.

While we wait for the excitement to begin, here’s Ryan Devereaux‘s summary of Supreme Court and campaign news today.

President Barack Obama’s signature health care law appears to be in peril, as a number of the Supreme Court’s more conservative judges continue to raise questions about the legislation’s constitutionality. The court’s decision is expected in June. Given the centrality of the Affordable Care Act to the president’s first term, the Supreme Court challenge will undoubtedly impact his efforts at re-election and the arguments of his challengers.

Newt Gingrich has admitted he can’t win the GOP presidential nomination outright and is cutting his staff in order to focus on winning at the Republican convention this summer. Tuesday night Gingrich’s campaign manager announced one third of the former House speaker’s staff would be leaving soon. The Gingrich camp believes neither Mitt Romney nor Rick Santorum will collect enough delegate votes to clinch the nomination. They hope to “take it to Obama” with Gingrich’s “big ideas”, which currently reportedly include a $2.50-a-gallon gasoline and two or three other things.

Mitt Romney appeared on the Tonight Show with Jay Leno Tuesday evening. The Republican frontrunner played a game of word association with Leno and joked about his rival Rick Santorum’s recent struggles with the media, suggesting the former Pennsylvania senator could serve as “press secretary” in a Romney administration. Romney resisted Leno’s attempts to go into detail about who he’d like to enlist as a vice president. He did, however, suggest he would be okay with Santorum filling the role. “I’m happy with him saying he’d like to be part of an administration with me, nothing wrong with that, if he’s the V.P. that’s better,” Romney said. “I’d rather be the president. Let him be the vice president.”

A new poll finds President Obama leading his Republican rivals in three important swing states. According to the latest Quinnipiac survey, Obama beats Mitt Romney and Rick Santorum in Florida, Ohio and Pennsylvania. In Florida, Obama leads Romney 49% to 42%, and Santorum 50% to 37%. Obama has an advantage of 47% to 41% over Romney in Ohio, and beats Santorum 47% to 40%. The race is closer in Pennsylvania, where Obama tops Romney 45% to 42 %, though Romney is well within the margin of error. Obama beats Santorum in home state of Pennsylvania 48% to 41%.

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I.V.Weekly-Chronicle


Powered by Guardian.co.ukThis article titled “Supreme court debates ‘Obamacare’ and Republican campaign – live” was written by Jim Newell, for guardian.co.uk on Monday 26th March 2012 16.55 UTC

12.54pm: Day One of the Case of the Century has already concluded, and the chamber is clearing out. Here’s CNN/New Yorker legal analyst Jeffrey Toobin‘s insta-reaction from the press bench:

Jamie Dupree of WBS radio had a bit more to offer, suggesting that there was still plenty of intra-justice sparring during these early, procedural hours:

While the U.S. Supreme Court set aside 90 minutes for argument on the first day of its review of the Obama health reform law, it did not seem like there was an appetite among the Justices to side step the essential question of the constitutionality of the law itself.

Instead, the Justices started skirmishing in advance of what will be the main event on Tuesday, when the Supreme Court takes two hours to review the individual mandate.

Jess Bravin at the Wall Street Journal felt a similar vibe – that the justices seem quite eager to fight this out instead of making an anticlimactic punt:

From what we’ve seen today, most of the justices appeared ready to get to the core of this case now, without waiting until 2014. Overall, the justices didn’t seem receptive to the argument that the Anti-Injunction Act bars a suit until 2014 or after because they didn’t see the insurance-mandate penalty as the kind of tax envisioned by the act.

For further insta-reactions, read any news website. Or stay here all day! You should stay here.

12.31pm: Actor Martin Sheen, who played President Jed Bartlett on The West Wing, has lent his fictional presidential voice to this new ad for the Democratic Congressional Campaign Committee:

“The same Republicans in Congress who obstructed Mr. Obama every step on the road back,” he says, “now want to end Medicare, eliminate it altogether.” Watch out, Martin Sheen! PolitiFact is going to shake a fist in your direction, any second now.

12.14pm: Today’s hearing at the Supreme court has now finished for the day.

12.10pm: Why can’t the Supreme Court justices simply decided this case with a game of paintball between the liberals and conservatives? You can learn so much from a game of paintball, according to these Western journalists who played with Hezbollah members.

11.56am: Aaaaand here’s the long-awaited video footage of Rick Santorum calling “bullshit” on Jeff Zeleny of the New York Times. Yes, it looks worse on video. Meaning it’s hilarious! He is quite the angry fellow.

 

11.44am: It wasn’t the big name lawyers for either side – profiles here and here – who opened the proceedings, the Wall Street Journal writes:

In a twist, the first lawyer set to stand up before the court Monday morning wasn’t Donald Verrilli or Paul Clement, the powerhouse advocates leading each side. Instead it’s Robert Long, a Covington & Burling partner who is arguing that the case isn’t ripe for adjudication. Long was hired by the Supreme Court to make that argument because both of the litigants – in a rare point of agreement – say the case is ready to be decided.

And the Associated Press reports on what sounds like a very… exciting… opening…

Eight of nine justices fired two dozen questions in less than half hour at Washington attorney Robert Long. He was appointed by the justices to argue that the case has been brought prematurely because a law bars tax disputes from being heard in the courts before the taxes have been paid.

Under the new law, taxpayers who don’t purchase health insurance will have to report that omission on tax returns for 2014 and will pay a penalty along with federal income tax. At issue is whether that penalty is a tax.

The “good stuff” comes tomorrow, when the individual mandate will be up for question-firing.

11.32am: Here’s our latest commentary on the issue, in which Jason Farago argues that Justices Roberts and Kennedy are all too aware of how overturning the PPACA would reflect on the Court’s reputation:

John Roberts surely wants to see the president lose this election as much as any establishment conservative, but it may be the election of 2000, rather than 2012, that really forces the chief justice’s hand. Whether he believes the zany arguments of the act’s opponents have worth is not the central question – because, to be frank, he has more to lose than Barack Obama, if he strikes it down. Obama may get a second chance, but for Roberts, the entire legitimacy of his court is as stake.

I wouldn’t go before a “death panel” to say so, but it seems a safe bet that Roberts and Kennedy will back the administration, if on narrow terms. But in the unlikely event that the justices kill part or all of the Affordable Care Act, it will at least remind us of one unspoken issue in this presidential race: that when we choose a president for four years, we’re also getting supreme court justices for decades more.

 

11.19am: Evan McMorris-Santoro of Talking Points Memo is also outside the Supreme Court, and notes that the atmosphere closely resembles those last days of protests outside the Capitol two years ago when the House was passing the health care law – specifically, tea partiers and liberal supporters shouting past each other with cheap sloganeering:

11.08am: Spotted amid the throngs of activists and angry journalists who couldn’t procure seating to today’s Supreme Court hearing: Rick Santorum, whining (appropriately) about how Mitt Romney basically invented the dreaded legislation being discussed indoors.

10.45am: Rick Santorum is standing by his hurling of a curse word – oh my! – at a New York Times reporter, telling Fox & Friends this morning, “If you haven’t cursed out a New York Times reporter during the course of a campaign, you’re not really a real Republican.” A new public litmus test! Romney? Gingrich? When will you curse out a Timesman in public?

Santorum – like any good Catholic boy – is even turning his vulgarity into a fundraising opportunity, emailing his supporters this morning:

Earlier today, while campaigning in Wisconsin, I criticized Romney and Obama for their outrageous healthcare legislation. Predictably, I was aggressively attacked by a New York Times reporter all too ready to defend the two of them, and all too ready to distort my words. Let me assure you, I didn’t back down, and I didn’t let him bully me. I think it is high time that conservatives find the courage to expose the liberal press for what they are, a defender and enabler of Romney’s and Obama’s liberal agendas.

This will probably reap great rewards.

10.35am: Let’s say there are two ways to evaluate the likelihood of the Supreme Court overturning, or at least mortally wounding, the Patient Protection and Affordable Care Act: (1) Read every explainer – or really the entirety of every legal blog over the past two years – to arrive at a conclusion based on justices’ previous rulings, overturn rates, or even (god forbid) the case’s merits, or (2) notice that there are five conservatives on the court as opposed to four liberals and just assume they’ll overturn it. The American public, according to The Hill’s latest poll, seem to be thinking more along the lines of (2):

Although voters want the court to strike the law, they don’t necessarily trust the justices’ motivations. Fifty-six percent of likely voters believe the justices are swayed by their own political beliefs, while just 27 percent believe they “make impartial decisions based on their reading of the Constitution.”

Skepticism about the justices relying on their political beliefs ran consistently among age, racial and philosophical categories, with a majority of whites (54 percent), blacks (59 percent), Republicans (56 percent), Democrats (59 percent), conservatives (54 percent), centrists (56 percent) and liberals (59 percent) expressing the same viewpoint.

10.17am: Not that he matters in any way whatsoever, but here is a new ad from Herman Cain in which a bunny is launched from a catapult and then shot in mid-air.

You’ll recall that Herman Cain led a major party’s race for its presidential nomination for several whole weeks last fall.

10.13am: President Obama, as ABC’s Jake Tapper reports, got himself into a bit of hot mic trouble near the end of his 90-minute meeting with Russian president Dmitri Medvedev this morning. Here’s the eerie transcript, in which Obama pleads for “space” on missile defense until his would-be reelection is out of the way:

Obama: On all these issues, but particularly missile defense, this, this can be solved but it’s important for him to give me space.

Medvedev: Yeah, I understand. I understand your message about space. Space for you…

Obama: This is my last election. After my election I have more flexibility.

Medvedev: I understand. I will transmit this information to Vladimir.

The White House has responded that with Russia having only recently resolved (in its own special way) its “election,” and the United States still having eight more months until its election that’s already been under way for a year, it’s true that neither side expects to get much done in the near term.

10.00am: Good morning and welcome to your Monday politics liveblog. This is Jim Newell writing from Washington. While you can usually find me at Wonkette these days, I’ll be substituting this week to bring you all the freshest political misery.

Most of today’s focus will be on the Supreme Court health care reform hearing, as Ryan Devereaux writes in our briefing of the morning’s events, but sadly the Supreme Court can’t fit us all as spectators. So we’ll have plenty of time to cover the other stuff – what mean things Rick Santorum said about Obama, or Mitt Romney said about Santorum, and so on, forever.

The main focus of political news comes away from the campaign trail today as 26 states challenge the constitutionality of the Obama administration’s signature health care legislation in the Supreme Court. A new CBS News/New York Times poll finds more Americans continue to disapprove of the president’s federal health care law than support it. According to the poll, 47% of Americans disapprove of the Affordable Care act while 36% approve, 16% don’t have an opinion. The issue has been prominent on the campaign trail: last week the Obama administration decided to embrace the term “Obamacare”, a phrase often used pejoratively by the president’s challengers.

Rick Santorum took a swing at Mitt Romney on Sunday, calling him “the worst Republican in the country to put up against Barack Obama.” Speaking in Wisconsin over the weekend, Santorum added that the former Massachusetts governor was “uniquely disqualified” to serve as the GOP’s presidential candidate. “Pick any other Republican in the country. He is the worst Republican in the country to put up against Barack Obama,” Santorum said. When pressed about his comments by a reporter, Santorum responded with obscenities. “Quit distorting my words. It’s bullshit.” Both the Obama and Romney camps have capitalized on Santorum’s outburst to cast him as a panicky and unhinged candidate in the final days of a failing campaign. It’s also earned him the nickname, “Tantorum”.

A senior White House adviser, David Plouffe, hit back at Rick Santorum and Newt Gingrich for their “reprehensible” comments on the Trayvon Martin shooting. On Friday President Obama expressed his sympathy for the Martin family, saying: “If had a son, he would look like Trayvon.” Gingrich said the comments were divisive, and Santorum said the president was “politicizing” the issue. Plouffe said the comments were “reprehensible” and appealing to voters’ “worst instincts”.

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