MARCH 29, 2012 UPDATE – A TRAIN WRECK FOR THE ADMINISTATION
The weight of opinion is now in. The mandate is dead and the entire measure is likely to be flushed. We won’t know more until the high Court publishes its opinion, most likely in June. But this is bad news for Obama and good news for Romney.
Paul Clement for the challengers: “What makes this different is that the provisions that have constitutional difficulties or are tied at the hip to those provisions that have the constitutional difficulty are the very heart of this Act… they are interconnected to the exchanges, which are then connected to the tax credits, which are also connected to the employer mandates, which is also connected to some of the revenue offsets, which is also connected to Medicaid; if you follow that through what you end up with at the end of that process is just sort of a hollow shell.”
Justice Roberts: “Congress had a balanced intent. You can’t look at another provision and say this promotes patient protection without asking if it’s affordable.”
Justice Scalia: “My approach would be to say that if you take the heart out of this statute, the statute’s gone.”
Justice Sotomayor: “Unless Congress tells us directly it is not severable, we should let them fix their own.” … “Why in a democracy structured like ours where each branch does different things, why should we involve the court in making a legislative judgment?”
CNN’s Jeffrey Toobin: “This still looks like a train wreck for the Obama administration. It may also be a plane wreck.”