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| Supreme court health care case – Tuesday 27 March | Supreme court health care case – Tuesday 27 March |
| (about 7 hours later) | |
| 10.00am: Good morning. This is Jim Newell again, prepared to bring you all the day's big political news. Perhaps you've heard that there's a rather important health care case being argued before the Supreme Court today? We'll be focusing on that, with reports from the field as developments occur. Today's hearing on the individual mandate is scheduled to begin at 10am. | |
| Here's Ryan Devereaux's summary, taking in what we're expecting from the court today, plus a roundup of news from the trail. | |
| Arguments in the Supreme Court case on healthcare reform turn to the red meat of the case today. Lawyers for the states challenging the Affordable Care Act will make the case that the individual mandate, which would force most people resident in the United States to sign up for health insurance, is unconstitutional. Tea Party Express activists will hold a press conference outside the court today, at which former presidential candidate Michele Bachmann is expected to speak. | |
| It appears Americans are beginning to tire of the longest war in US history. According to new poll from CBS News and the New York Times, a mere 23% of Americans believe the US is doing the right thing by fighting in Afghanistan, the lowest figure the poll has ever recorded. Sixty-nine percent of respondents believe the US should not be involved in Afghanistan, the highest total ever recorded by the poll. The issue is likely to play prominently in the general election campaign. | |
| In campaign news, the next primaries to vote are Wisconsin, Maryland and Washington DC, on Tuesday. When it comes to Wisconsin's airwaves, Romney has a 4 to 1 advantage over Rick Santorum. Politico reports the Romney campaign and his super PAC, Restore Our Future, are spending a combined $1,917,764 over the next seven days. As the Wisconsin primary enters its final week, Santorum's campaign is not on the air at all, leaving it up to his super PAC, the Red White and Blue Fund, to champion the former senator's message. | |
| Newt Gingrich is now charging people to be photographed with him. On Monday Gingrich's campaign began asking for $50 from supporters who want picture with the former house speaker. The fee is the latest in a series of signs that Gingrich's campaign is seriously strapped for cash. Despite this fact, Gingrich has vowed to carry on until the Republican convention in August. | |
| Mitt Romney's second cousin, Park Romney, has publicly denounced the Mormon religion as a "fraud". Formerly a Mormon high priest, Park told the BBC: "There's compelling evidence that the Mormon Church leaders knowingly and wilfully misrepresent the historical truth of their origins and of the church for the purpose of deceiving their members into a state of mind that renders them exploitable." | |
| 10.14am: Check out the hot scoop in Politico today: Mitt Romney is a rich person, with a big house. | |
| 10.39am: Chief Justice John Roberts uttered a line on Monday that's drawing attention from SCOTUS-watchers, as it could be perceived as him "tipping his hand" on the individual mandate: "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." | |
| This goes right against the core of one of the opposition's main arguments: That the government is commanding people to purchase something they may not want – health insurance – and this is a strike against their liberty. But Roberts points out, this is basically an issue of semantics. It's just a tax or a penalty; the word "mandate" is, if anything, poor politics on the Obama administration's part, but not a difference-maker in terms of constitutionality. | |
| But this could be an overread! | |
| 10.56am: Russian president Dmitri Medvedev has responded to Mitt Romney's allegation on CNN yesterday that Russia is "without question our number one geopolitical foe," with something between a laugh and a sigh (and a sneer): | |
| I always get very cautious when I see a country resort to phrasings such as 'No. 1 enemy.' It is very reminiscent of Hollywood in a certain period of history," Medvedev said, through a translator, at the nuclear security summit in Seoul, South Korea. [...] | |
| My other advice is to check their clocks from time to time," Medvedev said Tuesday. "It is 2012, not the mid-1970s. No matter what party a candidate represents, he has to take the current state of affairs into account." | |
| 10.58am: It sounds like Justice Anthony Kennedy, the eternal "swing vote" on the bench, isn't taking it easy on the Solicitor General as the hearing starts. From the Wall Street Journal: | |
| Mr. Kennedy has been challenging Solicitor General Donald Verrilli to answer what the justice says is a "very heavy burden of justification" to show where the Constitution authorizes Congress to change the relation of the individual to the government. | |
| 11.21am: The Tea Party Patriots lectern from which GOP members of Congress are speaking outside the Supreme Court this morning is adorned with a picture of recently deceased provocateur/shouty person Andrew Breitbart. | |
| One of those speaking from said lectern this morning is the always ... entertaining... Rep. Louis Gohmert of Texas, who's not known for filtering out his worst ideas so much as he is for screaming them at full volume. Via The Hill, here's Gohmert commenting yesterday on why liberals should fear the rise of a "redneck" president: | |
| It ought to scare liberals to come run and join conservatives, because what it means is when this president's out of the White House and you get a conservative in there, if this president has the authority under ObamaCare … to trample on religious rights, then some redneck president's got the right to say, 'you know what, there's some practices that go on in your house that cost people too much money and healthcare, so we're going to have the right to rule over those as well.' | |
| We'll get this translated to English shortly. /> | |
Uhh... | |
| 11.30am: Our correspondent Chris McGreal has much more from the Tea Party rally: | 11.30am: Our correspondent Chris McGreal has much more from the Tea Party rally: |
| The Tea Party met its match outside the supreme court as one of its leaders in Congress, Michele Bachmann, was drowned out by supporters of "Obamacare". | The Tea Party met its match outside the supreme court as one of its leaders in Congress, Michele Bachmann, was drowned out by supporters of "Obamacare". |
| Bachmann got off to a good start, declaring that even if the supreme court upholds the law, in what she called "one of the most important consequential decisions it will ever make," the battle is not over. "We let the American people know, we have not waved the white flag of surrender," she said. "Obamacare is the greatest expansion of federal power in the history of the country." | Bachmann got off to a good start, declaring that even if the supreme court upholds the law, in what she called "one of the most important consequential decisions it will ever make," the battle is not over. "We let the American people know, we have not waved the white flag of surrender," she said. "Obamacare is the greatest expansion of federal power in the history of the country." |
| While there may be no surrender, Bachmann at times was clearly losing in the battle to be heard against hundreds of supporters of the health reform law who chanted "We love Obamacare" and "Health care not war". | While there may be no surrender, Bachmann at times was clearly losing in the battle to be heard against hundreds of supporters of the health reform law who chanted "We love Obamacare" and "Health care not war". |
| Bachmann pressed on. "The (health care law) has not united us as a country. This bill has divided us more than ever. Look around you," she said. "We will stand, we will unite, we will repeal Obamacare". | Bachmann pressed on. "The (health care law) has not united us as a country. This bill has divided us more than ever. Look around you," she said. "We will stand, we will unite, we will repeal Obamacare". |
| Other Tea Party-supporting members of Congress faced a similar challenge as they tried to demand that the supreme court overturn the health care law. | Other Tea Party-supporting members of Congress faced a similar challenge as they tried to demand that the supreme court overturn the health care law. |
| Paul Brown, a congressman and doctor, said Obamacare is wrecking the country. "Obamacare is a destroyer. It's going to destroy health care. It's going to destroy the budget. We have to destroy Obamacare by repealing it." | Paul Brown, a congressman and doctor, said Obamacare is wrecking the country. "Obamacare is a destroyer. It's going to destroy health care. It's going to destroy the budget. We have to destroy Obamacare by repealing it." |
| But the health law's supporters weren't having any of it. One woman, Yasemin Ayarci, briefly threw the Tea Party rally in to chaos when she managed to push herself in to hear and stand in front of the podium holding a sign with a portrait of Jesus on it. "What sick bastard would want to provide free health care," it said. | But the health law's supporters weren't having any of it. One woman, Yasemin Ayarci, briefly threw the Tea Party rally in to chaos when she managed to push herself in to hear and stand in front of the podium holding a sign with a portrait of Jesus on it. "What sick bastard would want to provide free health care," it said. |
| This infuriated some Tea Party supporters, not least because many claim to be fervent Christians. A much larger man tried to assault Ayarci, 26, and had to be stopped by other Obamacare opponents. | This infuriated some Tea Party supporters, not least because many claim to be fervent Christians. A much larger man tried to assault Ayarci, 26, and had to be stopped by other Obamacare opponents. |
| Ayarci then pulled out a megaphone and began chanting in support of the law before she was eventually squeezed out. | Ayarci then pulled out a megaphone and began chanting in support of the law before she was eventually squeezed out. |
| Obamacare supporter, Yasemin Ayarci, in midst Tea Party rally at supreme courtgu.com/p/36f4k/tw via @guardian twitter.com/chrismcgreal/s… | Obamacare supporter, Yasemin Ayarci, in midst Tea Party rally at supreme courtgu.com/p/36f4k/tw via @guardian twitter.com/chrismcgreal/s… |
| — Chris McGreal (@chrismcgreal) March 27, 2012 | — Chris McGreal (@chrismcgreal) March 27, 2012 |
| 12.04pm: Here's more from Chris outside the Supreme Court: | |
| Several things are striking about the protests outside the supreme court. The first is that while the few score of Tea Party supporters are all white and mostly middle aged, the hundreds of supporters of the president's health care reforms represent a much greater diversity of ethnicities and ages. | |
| Also, the supporters of the reforms have appropriated "Obamacare" – originally intended as a derisive label by its opponents – and are now using it with enthusiasm. | |
| But above all, while the Tea Party claims that it speaks for the country in opposition to the health care reforms, it is the supporters who have turned out in force at the supreme court. | |
| Among them is Holly Dolan, a "school healthcare educator", who came down from Pennsylvania because of her "frustration at the lack of understanding of the reforms." | |
| "There's lots of misinformation. I really think people don't understand it. There are people who believe that abortion rights are in the law and they're not. People who think this is a government takeover of health care when it's all still private," she said. "These people here demonstrating against it are all going to benefit from the reforms. They're out here fighting against it because of this empty hollow rhetoric about being against the government." | |
| At that point, one of the opponents, Mike Sanford, marched up chanting: "Obamacare declares war on religion." | |
| 12.18pm: Legal eagles have suspected for years now that Justice Antonin Scalia, based on record of opinions related to the Commerce Clause, might vote to uphold the PPACA. But according to early leaks, at least, he seems more disgusted with the law than anything: | |
| Scalia: "What is left? If the government can do this what can it not do?" | |
| — AdamSerwer (@AdamSerwer) March 27, 2012 | |
| 12.23pm: Wow. The hearing's over and things are not looking good for health care reform: | |
| NBC's Pete Williams, post-SCOTUS, says on @msnbctv that he finds it "doubtful" the court will find the HC law constitutional. | |
| — Mike O'Brien (@mpoindc) March 27, 2012 | |
| Toobin on #CNN: 'This law looks like it's going to get struck down | |
| — Alexander Mooney/CNN (@AWMooneyCNN) March 27, 2012 | |
| Earlier Tom Goldstein at the invaluable SCOTUSblog shares his reaction after the Solicitor General's time before the bench: The justices' lines of questioning seemed to break down – you'll never believe this – along conservative and liberal lines: | |
| I left the Court to provide this update. We are halfway through the mandate argument; the SG is done. It is essentially clear that the four more liberal members of the Court will vote in favor of the mandate. But there is no fifth vote yet. The conservatives all express skepticism, some significant. They doubt that there is any limiting principle. But we'll know much more after the other side goes because arguments are often one-sided like this half way through. | |
| But it doesn't seem to have gotten any less one-sided in the second half: | |
| New update posted.Paul Clement gave the best argument I've ever heard.No real hard questions from the right. Mandate is in trouble. | |
| — SCOTUSblog (@SCOTUSblog) March 27, 2012 | |
| 12.38pm: Here's Mitt Romney from today's episode of the Hugh Hewitt radio show, giving what we may call a Romneyesque (i.e. weird) response to a question about whether he's the "godfather of Obamacare": | |
| If I'm the godfather of this thing, then it gives me the right to kill it. | |
Uhh... | |
| 12.55pm: Here's more dire soothsaying from CNN legal analyst Jeffrey Toobin (video via TPM): | |
| This was a train wreck for the Obama administration," he said. "This law looks like it's going to be struck down. I'm telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong... if I had to bet today I would bet that this court is going to strike down the individual mandate. | |
| The New York Times has a similar take, albeit a notch more measured than Toobin's. "The questioning was, even by the standards of the garrulous current court, unusually intense and pointed." Even by the standards of the garrulous current court! Oh dear, the Times has sunk into its Victorian-era fainting couch. | |
| 1.09pm: Our correspondent Chris McGreal shares this reaction from a Republican senator who watched the hearing and came out happy with what he heard: | |
| Senator Mike Lee, former supreme court clerk, after hearing arguments predicts court will strike down Obamacare | |
| — Chris McGreal (@chrismcgreal) March 27, 2012 | |
| Lee says swing vote is Justice Kennedy who was very sceptical of legality of Obamacare in his questioning | |
| — Chris McGreal (@chrismcgreal) March 27, 2012 | |
| 1.23pm: The audio and transcript (PDF) of today's hearing are now available at the supreme court's website. | |
| Here's a copy: | |
| 1.55pm: Let's take a breath after all of this hot legal chaos we've witnessed in the past hours. It's wise to keep in mind that strong reactions from the likes of NBC and CNN legal analysts about the sudden likelihood that the healthcare law will be overturned could be exaggerated, expressing more of a visceral reaction that things simply didn't go as smoothly as they'd been expecting for two years. (And note that they are trying to produce riveting, dramatic television coverage, after all.) | |
| Then by the time Twitter's finished amplifying their shock by a factor of 10, it's easy to forget that some of the justices will have a more complex thought process than was on display in their questioning. As political journalist Jon Ralston wryly remarked, "I wonder if any of the justices read Twitter so they will know how to rule." | |
| On the other hand: Yikes! The early consensus isn't necessarily that the supreme court will absolutely overturn the healthcare law. But solicitor general Donald Verrilli was not at the top of his game in arguing for its constitutionality, and stumbled over some questions, while Paul Clement, his foe Republican super-lawyer, delivered the Greatest Oration of All Time. | |
| Put another way: several of the five conservative justices, only one of whom will be needed to uphold the law as the four liberals seem firmly in support, wanted Verrilli to give them concrete reasons on why requiring individuals to purchase health insurance or else face a financial penalty is a case unique to healthcare markets that won't set a precedent in others. And it doesn't seem like Verrilli has won any of them – yet. | |
| The hearings will continue tomorrow, when the PPACA's Medicaid expansion will be under review. | |
| 2.58pm: Pages 12 to 14 of the transcript should give you a fair indication of how the solicitor general's day went. Justice Scalia hounds him to explain the central issue of how an individual mandate is a unique need for private health insurance markets – who's to say there'll never be a federal broccoli mandate, huh? is conservatives' favorite little twee hypothetical to use here. Verrilli keeps getting cut off and stumbling, leading liberal Justice Ginsburg has to swoop in and argue what he's trying to say for him. Take a look: | |
| JUSTICE SCALIA: Why do you – why do you define the market that broadly? Health care. It may well be that everybody needs health care sooner or later, but not everybody needs a heart transplant, not everybody needs a liver transplant. Why – | |
| GENERAL VERRILLI: That's correct, Justice Scalia, but you never know whether you're going to be that person. | |
| JUSTICE SCALIA: Could you define the market – everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli. | |
| GENERAL VERRILLI: No, that's quite different. That's quite different. The food market, while it shares that trait that everybody's in it, it is not a market in which your participation is often unpredictable and often involuntary. It is not a market in which you often don't know before you go in what you need, and it is not a market in which, if you go in and – and seek to obtain a product or service, you will get it even if you can't pay for it. It doesn't ... | |
| JUSTICE SCALIA: Is that a principal basis for distinguishing this from other situations? I mean, you know, you can also say, well, the person subject to this has blue eyes. That would indeed distinguish it from other situations. Is it a principle basis? I mean, it's – it's a basis that explains why the government is doing this, but is it – is it a basis which shows that this is not going beyond what – what the – the system of enumerated powers allows the government to do. | |
| GENERAL VERRILLI: Yes, for two reasons. First, this – the test, as this Court has articulated it, is: Is Congress regulating economic activity with a substantial effect on interstate commerce? The way in which this statute satisfies the test is on the basis of the factors that I have identified. If ... | |
| JUSTICE GINSBURG: Mr. Verrilli, I thought that your main point is that, unlike food or any other market, when you made the choice not to buy insurance, even though you have every intent in the world to self-insure, to save for it, when disaster strikes, you may not have the money. And the tangible result of it is – we were told there was one brief that Maryland Hospital Care bills 7 percent more because of these uncompensated costs, that families pay a thousand dollars more than they would if there were no uncompensated costs. I thought what was unique about this is it's not my choice whether I want to buy a product to keep me healthy, but the cost that I am forcing on other people if I don't buy the product sooner rather than later. | |
| GENERAL VERRILLI: That is – and that is definitely a difference that distinguishes this market and justifies this as a regulation. | |
| 3.40pm: Back to the campaign trail! What's happening? Newt Gingrich is playing at another zoo, in Maryland. | |
| Just heard red wolves howling in response to local hospital siren-four wolves make quite a noise-fascinating-red wolves very endangered | |
| — Newt Gingrich (@newtgingrich) March 27, 2012 | |
| If you go to the shore you should stop in salisbury to see the zoo--t is worth the stop | |
| — Newt Gingrich (@newtgingrich) March 27, 2012 | |
| 4.03pm: Over at the Washington Free Beacon, the new right-wing propaganda website established to counterbalance the influence of left-wing propaganda sites like Think Progress and Media Matters (which themselves were established to counterbalance the influence of right-wing think tanks, which themselves were established to... well, you get the idea), we have a hot political scoop related to the killing of 17-year-old Trayvon Martin in Florida. George Zimmerman, the man who killed Martin, is... a registered Democrat. This changes everything! Ugh: | |
| The individual at the center of the controversial Trayvon Martin shooting is a registered Democrat. | |
| George Michael Zimmerman, born Oct. 5, 1983, registered as a Democrat in Seminole County, Fla., in August 2002, according to state voter registration documents. | |
| It is unclear whether he voted for President Barack Obama in 2008. | |
| Even if he is a Democrat, it is still illegal under Florida law to murder teenagers. | |
| 4.11pm: The Mitt Romney campaign has responded to Politico's revelation that his expanded home in La Jolla, California, will feature a "car elevator." As usual, the response will lead to more jokes: | |
| The Romney campaign said that a "car elevator" was simply a mechanism for storing cars in tight spaces... | |
| Indeed, we all have trouble storing our many cars sometimes. | |
| 4.21pm: Obamacare protesters may have had a good day inside the Supreme Court, but they still don't know how to drive in Washington. | |
| Anti-Obamacare truck justed busted a u turn on Constitution Ave. In front of a cop car. And there go the flashers. | |
| — Michael McAuliff (@mmcauliff) March 27, 2012 | |
| 5.01pm: Over at The Nation, Dr Sonia Nagda writes up the argument that we've seen hanging around leftie circles for the last few years and will see again, many times in the next week, about how the invalidation of the individual mandate could play out for the best: legislators will then have no other choice but to institute to a single-payer system – the one we've wanted all along! – to prevent a market collapse. She writes: | |
| This would be a critical blow to one of the central premises behind health care reform. Re-instituting the individual mandate would be unconstitutional. So what then? | |
| One obvious option, besides just doing nothing and allowing health care costs to continue their exponential growth while more people lose coverage, is a single-payer health insurance plan. There is no doubt about the constitutionality here—the government is clearly allowed to levy taxes to fund public benefits. Medicare, for example, is not challengeable on the same grounds as Obama's health care reform. | |
| So if health care reform goes down, the next logical step may well be just extending Medicare to everyone. This was not politically possible in 2009, but perhaps the demise of "Obamacare" would make it moreso as legislators looked for other solutions. | |
| She makes a good point later that the state exchanges set up under health care reform would remain intact, allowing states to pursue their own options – and many of them might try out their own single-payer systems, as Vermont is now. | |
| But the idea that "the next logical step" would be a single-payer system ignores the fact that "the next logical step" is usually the one that Congress avoids putting into law. More likely, if the mandate would be struck down, the financial burden of health care costs would keep rising exponentially for the next 20 years, or however long it would take for scaredy-cats in Congress to broach the dangerous issue of comprehensive health care reform again. Maybe there would be a few tweaks here or there to ease the pain and prolong things a few years at a time, but the health insurance system would mostly go on as it was. The demise of Obamacare will not increase the legislative appetite for a single-payer system anytime soon. More likely, if anything, it would lead to long-standing conservative alternatives – allowing companies to sell insurance across state lines, for example – that would lead to a race-to-the-bottom among the states and worsen the quality of care across the board. | |
| And it's important to recognize the broader implications on our politics of an unconstitutional ruling in this case. This would be a devastating blow to concepts of collective action and risk-pooling for the benefit for the public at large. And some think that legislators would move in a more collectivist direction after this? Don't count on it happening anytime soon. | |
| But anyway, this is all premature! | |
| 5.48pm: OK, that's enough typing for a day. Let's review all the hot action from this chilly spring day in Washington. | |
| Oh my goodness, the supreme court is going to maybe possibly perhaps declare Obamacare unconstitutional! Contrary to popular legal expert opinion, the conservative supreme court justices didn't gently stroke Solicitor General Donald Verrilli's hair as he presented his defense of health care reform's individual mandate in oral arguments today. Verrilli struggled to offer clear defenses of his position in the face of difficult questioning, while the opposing lawyer, Paul Clement, sang sweet conservative tunes into the conservative justices' welcoming ears. But there's more time for oral argumentation tomorrow, and then a couple months for justices to dwell over things. It's looking like the deciding votes will be cast by Justices Kennedy and/or Roberts. | |
| Russia's President tells Mitt Romney to grow up and stop watching so many Cold War movies. Russian president Dmitri Medvedev let out out a sharp, paternalistic swat in Mitt Romney's direction, after the Republican presidential canddiate called Russia "without question our number one geopolitical foe" yesterday. "It is 2012, not the mid-1970s," Medvedev reminded. "No matter what party a candidate represents, he has to take the current state of affairs into account." Democrats then used Medvedev's words to bolster their attacks on Romney, and Republicans called out Democrats for using a Russian President's words positively, et cetera. | |
| Mitt Romney is rich and has fancy things in his house. We also learned today that Mitt Romney's La Jolla home will have a "car elevator," to fit all of his cars in his massive mansion, which also has its own private lobbyist. This will be funny for a day or two more until Democrats overuse it. | |
| That's all for today. We'll see you in the morning. |