Brian Beutler at Talking Points Memo may have the biggest scoop – if we can call it that – of the Supreme Court case on Obamacare so far.
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On his blog today, Beutler wrote:
“In a little-noticed exchange Monday, conservative Supreme Court Chief Justice John Roberts may have tipped his hand that he’s entertaining the possibility that the health care law’s individual mandate can be upheld on a constitutional basis that’s different from the one supporters and opponents have made central to their arguments.
“For over a year now, observers and experts have assumed that the court’s final decision will hinge on the extent of Congress’ power to regulate interstate commerce. But the justices could also upend that conventional wisdom and, in a worrying sign for the plaintiffs on Monday, Roberts unexpectedly highlighted one way they could do that.
“In an exchange with a plaintiff attorney, Roberts suggested he’s skeptical that the mandate and its penalties can be treated separately and may have opened the door to finding that Congress’ power to impose the mandate springs from its broad taxing power.”
Here’s the Roberts remark from the opening arguments that may have the plaintiffs quietly stewing:
“The idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn’t seem to make much sense. It’s a command. A mandate is a command. If there is nothing behind the command, it’s sort of, well what happens if you don’t file the mandate? And the answer is nothing. It seems very artificial to separate the punishment from the crime. … Why would you have a requirement that is completely toothless? You know — buy insurance or else. Or else what? Or else nothing.”
You can read more here.
