++The second day of hearings on the Healthcare Bill has concluded. There is doom and gloom among supporters of the bill because the government lawyer seemed to muff the argument for the individual mandate. He was greeted with hostility by the conservative judges, while the opposing lawyer was not asked any probing questions of his own.
++Prior to today's hearing, Supreme Court watchers pegged upholding the individual mandate was either a 6-3 to 7-1 vote. Even Reagan's Solicitor General Charles Fried shocked me with a prediction of an 8-1 vote. The ABA had conducted a survey of its members and found that over 2/3rds thought the bill would be upheld.
++But in today's oral hearing, Judge Kennedy, one of those to whom the whole bill was crafted for, came out of the box, raising questions about what limits are in place to prevent using the mandate for other obligations. The situation deteriorated so that the liberal judges had to step in and start making the case for the lawyer.
++Strangely Chief Justice Roberts appeared more amenable to the individual mandate because health care in the United States--unlike anywhere on planet earth--is a market driven enterprise. So first you have the fact that the Court must decide whether Congress can regulate a market that comprises 18% of the economy. Secondly, everyone from the day they are born are a part of the market. Thirdly, can you actually opt out of the market even when you benefit?
++By the end of the day,op-ed writers were saying that the individual mandate will depend on how the judges define the market. Now optimists say it would pass 5-4 or 6-3. On the other hand Jeffrey Toobin claims that hearing the arguments of today,"the law is in grave,grave trouble."
++Robert Reich thinks that if the individual mandate is defeated then President Obama can pivot and advocate Medicare for all. Nice but hardly realistic in this environment.
++The real problem is if the law is overturned,this will open again the pandora's box of issues that had been put to rest--no cap on health care, no refusal for pre-existing conditions, no copays for preventive medicine , whether my son can stay on our health insurance until 25.
++The problems created by this bill being declared unconstitutional put at risk the entire health system of the country. Readers who read this blog when the health bill was being debated will remember that the health insurance companies held a conference here in Washington for their accountants and economic analysts . The private conference concluded that the industry would have to adopt crisis methods if the bill didn't pass. The industry could absorb the changes if they were guaranteed additional customers. Otherwise, as one Stanford professor noted, the industry would resemble other businesses which seem to have booms because of excess profit and then they collapse. The industry itself would have to start culling customers from its base to maintain any economic viability. It would also have to exclude millions to survive. This would then cause premium prices to skyrocket. Already the industry says it will raise premiums 25% next year if the individual mandate is defeated.
++Other bloggers have speculated on the effect of a negative ruling on President Obama's re-election. I won't go there until the summer when there is actually a real ruling.
++Meanwhile the Department of Justice has filed to have a faster review of the DOMA act. The DOJ is already on record refusing to defend the Defense of Marriage Act but wants to expedite this with en banc hearings in the 9th Appeals Court. The idea is to speed its way to the Supreme Court
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