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UPDATE: And now we wait.
The Supreme Court wrapped up its final day of oral arguments on President Obama's health care law on Wednesday, with the third day's action focused squarely on how much of the reform initiative could be saved if the justices decide to strike down the individual mandate.
Unlike Tuesday, when most observers appeared in agreement on what to make of the proceedings (flashback: it didn't look good for the president's landmark achievement), Wednesday's action appeared much less clear cut. Politico explains: "Most of the justices appeared opposed to tossing out the entire law, but their views of how much to keep in place were murky and did not break down along conservative and liberal lines."
More from Politico:
The questions showed the justices are wrestling with a real dilemma: Striking the entire health law would be a radical step and could throw the country into an uproar. But they’re not health care experts, and they were clearly worried about the consequences if they pull out pieces of the law and that throws the rest of the health care system into chaos.
A final ruling is expected in June. Most expect the fate of the high-profile legal battle to rest with Justice Anthony Kennedy. His comments during Wednesday's action suggest that if the justices opt to strike down the mandate, the rest of the law could be thrown out as well. He said that it would be "more extreme" for the court to simply cut portions of the law while leaving others in place, something he said would result in a "new regime that Congress did not order."
Justice Antonin Scalia advanced a similar argument. "My approach would be to say that if you take the heart of the this statute, the statue's gone," he said. Still, he took issue with the notion that the law would need to be struck down simply because the legislation would never have passed Congress without the mandate's inclusion in the first place.
The Washington Post explains:
Justice Antonin Scalia brought up one of the last-minute deal sweeteners that drafters of the law threw in to win the crucial vote of Sen. Ben Nelson (D.Neb.) — a concession dubbed “the Cornhusker Kickback.” If the court were to declare the kickback unconstitutional due to a constitutional prescription against “venality,” Scalia posited, to titters in the courtroom, would the justices really have to strike the entire law on the grounds that the law could not have made it through Congress without it?
“That can’t be right,” he said.
Although, as Slate's own Dave Weigel points out, the kickback Scalia is referring to didn't actually make it into the final legislation.
Wednesday, March 28: The Supreme Court on Wednesday will hear its third and final day of oral arguments on President Obama's health care law, with the proceedings focused heavily on whether the landmark initiative can survive without the individual mandate.
That issue was seen as somewhat of an afterthought in the lead-up to the high-profile hearings as many observers predicted that the justices would ultimately let Obamacare stand. But after Tuesday's proceedings set off speculation that the high court may strike down the compulsory insurance requirement, the question of what would happen to the law's 450 other provisions has taken on added weight.
The administration and other Obamacare backers have argued that the law cannot exist as intended without the mandate. As a result, the court has hired a lawyer to make the alternative case: That the legislation can remain in place even if compulsory insurance is struck down, the Guardian reports.
The justices will also consider whether the federal government can put more Medicaid demands on states, USA Today explains.
Justice Anthony Kennedy is considered to be the swing vote for the final decision, which will be made in June of this election year.
Tuesday, March 27: The Supreme Court on Tuesday wrapped up its second day of oral arguments on the new health care reform law, and the early returns suggest that things don't look so good for President Obama's landmark initiative.
CNN legal correspondent Jeffrey Toobin put it like so: "This was a train wreck for the Obama administration. The law looks like it's going to be struck down. All of the predictions including mine that the justices would not have a problem with this law were wrong."
Over at the SCOTUSblog, meanwhile, they were singing the praises of the attorney arguing against the law: "Paul Clement gave the best argument I’ve ever heard. No real hard questions from the right. Mandate is in trouble."
The New York Times sets the scene in the courtroom:
"Everything about the argument was outsized. It was, at two hours, twice the usual length. The questioning was, even by the standards of the garrulous current court, unusually intense and pointed. And the atmosphere in the courtroom, which is generally subdued, was electric.
"The legal question for the justices was whether Congress had exceeded its constitutional authority in requiring most Americans to obtain insurance or pay a penalty. The practical question was whether Mr. Obama’s signature domestic achievement would survive."
Many observers predicted that Solicitor General Donald B. Verrilli Jr., the lawyer representing the administration, would need to win over at least one of the four more conservative justices seen in play—Anthony Kennedy, Antonin Scalia, Samuel Alito or John Roberts—during the proceedings, but that didn't appear to happen Tuesday during an aggressive back and forth between Verrilli and the judges.
In the end, the fate of Obamacare appears likely to be decided by Justice Kennedy, who has sided with liberals in the past. But Kennedy's questions Tuesday left many with the impression that he has his doubts about the individual mandate.
The Washington Post explains:
"Justice Anthony M. Kennedy, traditionally the justice most likely to side with the court’s liberals, suggested that the 2010 Patient Protection and Affordable Care Act invoked a power 'beyond what our cases allow' the Congress to wield in regulating interstate commerce. 'Can you create commerce in order to regulate it?' he asked."
Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan all suggested they are likely to vote to preserve the president's health care reforms. Justice Clarence Thomas, as usual, asked no questions, but most expect him to vote to strike down the law.