That’s the conclusion of a leading Supreme Court observer based on this morning’s oral arguments.
The source, SCOTUS Blog, is a bit slashdotted at this moment.
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Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
University of Miami School of Law
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This speed business is really getting out of hand. There is exensive discussion (including many articles at http://www.washingtonpost.com) before the Justices had finished tipping their hands by asking leading questions. Another observer argues that later questions by Roberts and Kennedy suggested a more favorable attitude towards the mandate.
say here
http://tpmdc.talkingpointsmemo.com/2012/03/after-rough-day-in-court-an-optimistic-view-for-supporters-of-obamacare.php
This Crooks & Liars post is also a bit less pessimistic.
I didn’t think the Scalia’s analogy to mandating broccoli purchases was on point. While he’s often very witty, and even more often funny, he seemed to have jumped at this one. The correct analogy, run backwards, is that since everyone also is in the food market, if the government mandated broccoli purchases, why hasn’t in mandated everyone needs to have a kidney transplant (to kick-start that industry).
I don’t know the strategy involved in not challenging that, but the correction would be since everyone is in the food market, why not have some sort of unemployment insurance mandated, so that some food would be available for a person without a paycheck.
While the details between such unemployment insurance and a health mandate would differ, almost as a consequence that there will be no law stating that a supermarket must provide food to the penniless and we will work out the money later, while a hospital does find itself in this situation, and I don’t know if that’s by legislation or by the doctor’s oath. For instance, the unemployment insurance might be limited and related to past employment, in which the employee (and employer) were obliged to pay in.
So his witticism, to me, really nailed the government’s point, not his own.
However, he did say that he felt the taxing power covered this anyway. But then in some other places there seemed to be a challenge to the law based on taxing power that were being held in reserve in case the arguments when that way.