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March 27, 2012 By Steven Greer, MD
Today was the most important day of the historic three-day Supreme Court hearing evaluating the constitutionality of the PPACA law, otherwise known as “Obamacare”, because it addressed the “commerce clause” of the constitution that is the justification for mandating people buy healthcare insurance. The full audio and transcripts are available on the Supreme Court’s web site. Listening to the audio is imperative to fully appreciate the proceedings.
In the opening acts, the U.S. Solicitor General Donald Verrilli, gave his arguments supporting the PPACA law. By our count, there seems to be a majority of the court opposed to allowing the commerce clause to justify the insurance mandate.
The next two lawyers before the court represented the 26 State Attorney’s General opposing PPACA. Paul Clement, former U.S. Solicitor General, argued on behalf of the states and the Florida appeal. The National Federation of Independent Business (NFIB), represented by Michael Carvin, also appealed the PPACA and argued before the court.
The issue of whether the penalties imposed on people who fail to buy health insurance is a tax, and therefore constitutional, was also argued. Recall, in order to pass the PPACA, congress and the president specifically stated that the PPACA did not impose a tax, which has turned out to backfire on supporters of PPACA.
By our count, there seems to be at least a majority of five justices who oppose allowing the commerce clause to support the PPACA.
1- Chief Justice Roberts: strong negative comments throughout the day
2- Justice Kennedy: strong negative comments throughout the day
3- Justice Scalia: strong negative comments throughout the day
4- Justice: Alito: strong negative comments throughout the day
5- Justice Thomas made no comments, as usual, and is widely viewed to be in opposition of PPACA
In support of the PPACA were:
1- Justice Kagan (see page 23 of the transcripts)
2- Justice Sotomayor (although she was on the fence and not a sure supporter of commerce clause, see page 22)
3- Justice Breyer, although Breyer was equivocal and was critical of the commerce clause in the opening section
4- Justice Ginsburg (see pages 18 and 19 where she argued with Justice Scalia)
Most of the justices seemed to believe that the PPACA penalties are not a tax, which would be a blow to the proponents of the law. On page 47, even Justice Ginsburg was critical. On page 48, Kagan was also skeptical of calling it a tax.