Jeffrey Toobin, senior legal analyst at CNN, walked out of the Supreme Court on March 27 following oral arguments on the reform law’s individual mandate, and the White House could not have liked what he said: “I think this law is in grave, grave trouble.”
He called the administration’s presentation a “train wreck” and said it looks like the Court will strike down the law. Cautioning that while not an absolute, the questions justices ask during oral arguments often are a barometer of how they will vote, and in that is an unexpected hope for the Obama Administration.
The four liberal justices clearly support the law, Toobin said. But conservative Chief Justice John Roberts, based on his remarks, could join them in upholding the law. Roberts’ position may not be clear, but swing-vote Justice Anthony Kennedy “is a lost cause,” he added.
The court is split between four reliably conservative justices and four reliably liberal justices, with moderate conservative Kennedy often the swing vote. If Kennedy has serious qualms about the constitutionality of the law, then Roberts in this case may be the swing vote.
Lee Ross of Fox News.com took a different view of Kennedy, writing he had tough questions but did not tip his hand and could ultimately still be the key vote. Kennedy, however, did note that the law changes the relationship between the individual and the government, and while the Court generally gives Congress the benefit of the doubt, there was a “heavy burden of justification” on reform supporters to prove its legal worth.
The Court on March 28 will hear arguments on Medicaid expansion authorized in the rule, and the issue of severability--whether striking one or more provisions would throw out all of the law or leave other provisions intact.
Employee Benefit News, a sister publication of Health Data Management, has photos from the ongoing protests in front of the court available here.
More information about the HIT ramifications of the challenge to the health reform bill is available here.
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