From the diaries…

Wow.  To continue with Handicapping Health Care.

Bottom line, I stand by what I said in Handicapping Health Care; however, I increase the odds.  I would handicap it at 65% unconstitutional.  The vote is likely 5-4, but plausibly 6-3, and remotely 7-2.  If the vote is Constitutional, it will be 5-4 (95% chance) and 6-3 (5% chance).

The Solicitor General began horribly, sounding as if he had a cold for several minutes.  While he recovered his style, he lost his arguments, becoming flustered at questions from the CJ (for a couple minutes).  Justice Sotomayor  rescued him with a wonderful soliloquy, but no question other than “Don’t you agree?”

Mr. Toobin at CNN overstates the disaster for the government, as does Drudge.  The first 45 minutes was indeed a government disaster on the Commerce Clause, along with a one or two minute throw-away on the Taxing Power.  Essentially, the government has conceded that the ACA cannot be justified under the Taxing Power.  But the remaining 75 minutes were, at time, dicey for the states and other opponents.

Justices Ginsberg, Sotomayor, and Kagan were tough with Mr. Clement, who represented the States.  He performed brilliantly and almost flawlessly.  He could have better answered Justice Ginsberg’s questions regarding Social Security, but otherwise, he was nearly perfect.

That said, I see Justice Kennedy teetering a bit.  One must listen to the entire argument and read the entire transcript.  Justice Kennedy is almost sold, but not quite.  I believe Justices Scalia and Alito, along with Thomas, are sold: this is unconstitutional.  The CJ is close behind, but not quite as open.  I would be very surprised if any one of them voted to uphold.

This is mostly going to be about Justices Kennedy and Breyer, but we always knew that. Each asked tough questions.  Justice Kennedy appears to want to find it unconstitutional, but wants to think more, which is good.  Justice Breyer appears to be the opposite, but struggling.  He suggested Congress has the power to compel the purchase of cell phones and similar items.  I have doubts he was serious.  I suspect he was attempting to provoke a response from the Solicitor General.  Throughout both days, Justice Breyer questioned both sides very well and appeared reachable.

Justice Sotomayor, for the most part, appears (as one would expect) to support constitutionality; however, she also appears open.  I doubt she will vote for unconstitutional, but it is not unthinkable.  Justice Kagan is, I believe, probably lost, which is no surprise.  I feel better today about Justice Ginsberg, but I wish someone would have answered her questions on Social Security.  Let me do so.

Justice Ginsberg, Social Security and Medicare are very different from the ACA.  SS and Medicare are constitutional income taxes on people who choose to earn wages or who self-employ.  They are also constitutional excises on employers.  As an entirely separate matter, both involve Congress’ spending power, which it annually uses to pay money for the general welfare for old age, survivor’s, disability, and health care benefits.  Congress could constitutionally repeal all the benefits tomorrow and keep the taxes, both past and future.  The two are entirely separate.  Thus neither Social Security nor Medicare is an insurance program.  In contrast, the ACA compels people to purchase real health insurance from a real private party.  It then directly taxes people who have no insurance, but does so in a manner which is not apportioned.  Both aspects are unconstitutional.  The first compels commerce, which violates the commerce clause.  The second is an impermissible unapportioned direct tax and thus violated the Taxing Power.  For Social Security and Medicare, the notion that the two halves (the tax and the benefits) are connected is a myth.  They are not.  Indeed, each is constitutional separately under different powers.  For the ACA, the two are connected and each is unconstitutional – both together and separately.  In sum, the ACA is about the health insurance market.  Neither social security nor medicare have anything to do with insurance: that they do is a myth . . . and a fraud – a sometimes difficult-to-understand myth, but a myth nevertheless.

I doubt anyone will reach Justice Ginsberg, either in argument, in brief, or in discussion on the Court.  I doubt anyone will convince Justice Kagan, either.  I thus predict the vote will be 5-4 or 6-3 unconstitutional, with a remote chance of 7-2 unconstitutional.  I predict it will be on commerce clause grounds, but with at least a concurring opinion on the Taxing Power.

I take some pride in believing my co-author and I destroyed the taxing power argument so thoroughly (in four articles and four briefs), the government relegated it to a minute or so.  They gave up because they could not defend it.  I wish the opponents had seized upon that opening and hammered the Taxing  Power argument, but they did not.  Had they done so, I would be predicting better odds. I did not think they would.  But, Mr. Clement performed so well, I can hardly be disappointed.

I am confident, this act is going down.