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Day Two: Obamacare is Going Down

Postmillennialism —  Leave a comment

Bottom line, I stand by what I said in Handicapping Health Care; however, I increase the odds.  I would handicap it at 65% unconstitutional.  The vote is likely 5-4, but plausibly 6-3, and remotely 7-2.  If the vote is Constitutional, it will be 5-4 (95% chance) and 6-3 (5% chance).

The Solicitor General began horribly, sounding as if he had a cold for several minutes.  While he recovered his style, he lost his arguments, becoming flustered at questions from the CJ (for a couple minutes).  Justice Sotomayor  rescued him with a wonderful soliloquy, but no question other than “Don’t you agree?”

Mr. Toobin at CNN overstates the disaster for the government, as does Drudge.  The first 45 minutes was indeed a government disaster on the Commerce Clause, along with a one or two minute throw-away on the Taxing Power.  Essentially, the government has conceded that the ACA cannot be justified under the Taxing Power.  But the remaining 75 minutes were, at time, dicey for the states and other opponents.

Justices Ginsberg, Sotomayor, and Kagan were tough with Mr. Clement, who represented the States.  He performed brilliantly and almost flawlessly.  He could have better answered Justice Ginsberg’s questions regarding Social Security, but otherwise, he was nearly perfect.

That said, I see Justice Kennedy teetering a bit.  One must listen to the entire argument and read the entire transcript.  Justice Kennedy is almost sold, but not quite.  I believe Justices Scalia and Alito, along with Thomas, are sold: this is unconstitutional.  The CJ is close behind, but not quite as open.  I would be very surprised if any one of them voted to uphold.

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