Post-argument update from Kevin (audio)
on Mar 27, 2012 at 12:06 pm
Kevin Russell made this report immediately following the conclusion of today’s oral argument (at bottom of page).
For those who prefer to read, a summary of Kevin’s report is below.
At the end of the argument, there are clearly four votes to uphold the statute, but it’s still not clear that there is a fifth vote. It seems likely that Justices Scalia and Alito think the statute is unconstitutional. Justice Thomas was stoic, but he is probably voting with the challengers too. That leaves the Chief Justice and Justice Kennedy, both of whom asked tough questions to the government, but both of whom also indicated that they were troubled that health care is a major national problem, and that the challengers’ legal rule might tie Congress’s hands in responding to that problem.
Interestingly, the argument that Congress has the power to do this under its taxing authority got relatively little play today. In fact, at the end, Justice Scalia’s only comment was that if the Court accepted the taxing power argument, there would be no reason to have a broader conversation about the commerce power. The taxing power thus might provide an outlet for those Justices who think that the government has to have the ability to do something about health care, but who aren’t convinced that the government’s position on the commerce power admits any coherent limiting principle. That’s one of the more hopeful scenarios for the supporters of the statute. Of course, it’s also possible that the lack of discussion about the taxing power argument merely indicates that the Justices don’t take it very seriously.