Wednesday, March 28, 2012

Recap and Predictions

Day 1: Penalty vs Tax
In day 1, we saw almost all justices pessimistic about calling this a tax, in that nobody could find an instance of the word "tax" in the legislation surrounding the mandate. Scalia even went so far to cite the President's opinion. If this were to be ruled a tax, you could pretty much throw the dictionary out the window because any words' meaning would be changeable to the legislator's whim, especially in hindsight.

It's a penalty. Call it 6-3, with Justices Kagan, Sotomayor, and Breyer dissenting weakly.

Day 2: The Mandate's Day in Court
Verrilli didn't have that much to work with. Kennedy didn't get the answers he was looking for to uphold the mandate. Nobody did. Put simply, once you enter commerce, you are subject to regulation. The government cannot regulate non-commerce, just commerce. The health insurance industry is unique, just as every other market is unique. No limiting principle was put forth by the government, and Kennedy was more than concerned that granting Congress this power would in effect let them regulate any non-commerce in any industry.

Fingers crossed. Kennedy casts the final vote against the mandate. I wouldn't be surprised if even Justice Ginsberg voted against given her opinions in the transcripts and the government's position. Final tally goes 5-4 or 6-3 in favor of Florida. Obama does a history adjustment to make it seem...Wow, he already beat me to it.

Day 3: Severability
I though severability would be a slam dunk. As in it wouldn't be severable. The Deputy SG, with the aid of Justices Kagan, Ginsberg, and Sotomeyer made a compelling case. Scalia just had some fun, because even he knows its already been decided.

Severable, 7-2 with Justices Thomas and Scalia dissenting. Send it back to Conrgess and let them pour through the legislation to figure out what can stay and what can't while they try to pass a wildly unpopular bill without the votes.

Head over to Althouse for this afternoon's festivities.

Other stuff: Temple of the Mutt has a great update on the Tea Party slandering from last week. Worth the read. Do not taunt Temple of the Mutt.

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