Today starts the third day of argument at the Supreme Court. What do we know about the case so far?
We know that 26 states have challenged Obamacare. For Democrats and the folks in Rio Lindo, that's more than half of the states.
We know that the court is ideologically split. There are four conservative justices and four liberal. The ninth and clearly "swing" vote is Justice Anthony Kennedy who was a Reagan appointee, is an objective voice on the court and not in lockstep with either ideological base.
We know that the commentary so far has seemed to indicate a fairly strong aversion to the argument that the individual mandate is justified under the commerce clause. Most people shorthand the commerce clause as authority to regulate interstate commerce. The actual wording is: "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
So, is the mandating of individual A to purchase insurance from company B by government C to underwrite a grandiose public healthcare entitlement reasonable under a concept of limited government? If the transaction takes place within the state, and only because the world is a singular entity impacts other economic activity under the concept of a "butterfly effect" is that interstate commerce?
Among the semi-facetious comments yesterday were queries regarding whether this was precedent to mandate purchase of burial insurance, cell phones or broccoli in some dystopian future.
The stammering counter from an arguably ill-prepared Solicitor General was that healthcare was significantly different because everyone needs it. Of course everyone needs burial eventually. And everyone must eat. Probably not a good rationale, but who knows.
The pundits are all at high RPM. Everyone finds a quote du jour which supports their preconceived notion of slam-dunk for their side. The government expansionists are jubilant. It will stand!
The individual responsibility, free market supporters are ecstatic. They've got it in the bag!
The politicos are interpreting the future and the very significant impact on the election in November. What does it mean either way? Republican candidates are running on repeal. Will this emasculate them? Democrats are running on what a great job Obamacare is doing, without bothering to note that few have gained healthcare yet but all have had tax impacts.
Frankly, I don't see the argument being raised that a shutdown of the individual mandate can help the Bamster at the polls. It would seem to be a classic example of the will of the people expressed through a majority of the states in a federal system protesting imposition of an unwanted program. My view is that it would be a precursor of major defeat for the incumbent.
But, the Supreme Court is seldom transparent in their deliberation. What they say during argument is not what will be debated behind closed doors. The opinion which will emerge in June may be what has been telegraphed in these three days or it may be significantly different. The only thing we can be certain of is that it will be a detailed and probably narrowly focused decision which will leave doors open for revision, modification or replacement of a healthcare program.