The Supreme Court did not hear arguments directly relating to the merits of the individual mandate yesterday, but the skepticism many of the justices did voice suggests that when the Court does reach a decision on the merits, they will reject one key Obama administration defense of the law.
At issue Monday was whether Obamacare’s individual mandate was a tax pursuant to the Anti-Injunction Act. If it is, then all federal courts would be barred from hearing a challenge to the law until the first American is forced to pay the tax in 2015. But even the most liberal justices on the court seemed skeptical of this argument.
“This is not a revenue-raising measure, because, if it’s successful, they won’t — nobody will pay the penalty and there will be no revenue to raise,” said Justice Ruth Bader Ginsburg of the mandate. Another liberal, Justice Stephen Breyer, said of Congress’s description of the mandate fine, “They called it a penalty and not a tax for a reason.”
This does not bode well for the Obama administration’s defense of the mandate’s merits today since one of the three arguments they will be making is that Congress has the power to enact the mandate under their taxing power. “General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax,” Justice Sam Alito said.
With the tax argument likely gone, the Obama administration will be left arguing that the mandate is justified by either the Commerce Clause or the Necessary and Proper Clause. You can read descriptions of related cases here.
Gingrich: In yet another sign that Newt Gingrich’s campaign is less about delegates and more about the bottom line, Newt is now charging $50 for pictures at campaign events.
California: Mitt Romney will hold five fundraisers in California over the next two days.
Wisconsin: Wisconsin Democrats are completely ignoring Rick Santorum, instead they are tying Romney to Rep. Paul Ryan’s, R-Wis., Medicare reform plan.
Around the Bigs
The New York Times, 47 Percent Disapprove of Health Care Law: A New York Times/CBS News poll conducted last Wednesday through Sunday, finds that 36 percent of Americans approve of the health care law, while 47 percent are opposed. By nearly 2 to 1, those who say they strongly disapprove of the law outnumber those who strongly approve of the legislation.
The New York Times, Awaiting Health Law Ruling, and Preparing Plan B: Legislatures in states controlled by Democrats are preparing legislation for state individual mandates should the Supreme Court find the federal one unconstitutional.
The Washington Post, Caught on open mike, Obama tells Medvedev he needs ‘space’ on missile defense: A hot mic picked up a comment from President Obama not intended for public consumption yesterday. “This is my last election,” Obama told Russian President Dmitry Medvedev about his missile defense policies . “After my election, I have more flexibility.”
The Wall Street Journal, Planned Pipelines to Rival Keystone XL: Two major energy companies are planning to build new pipelines that will move as much as 850,000 barrels of crude oil a day from Canada to refineries along the Gulf Coast by mid-2014, in the latest effort to cope with a surge of oil production in North America. The Enterprise and Enbridge projects don’t face the same hurdles as Keystone XL, like a U.S. State Department review, because the cross-border portions of their pipelines are already built, experts say.
The Washington Post, Democrats at odds over Obama-backed pro-business bill: Some Senate Democrats are considering blocking the Jumpstart Our Business Startups Act (JOBS Act) from a full vote this week because they say it will lead to fraud and investor abuse.
The Wall Street Journal, EPA Takes Aim at Coal Plants: The Environmental Protection Agency is set to introduce new rules Tuesday that will essentially make it unviable to build new coal-fired power plants.
AEI‘s Kenneth Green responds to a Center for American Progress memo detailing how the left should respond to high gas prices.
The Heritage Foundation‘s Baker Spring explains what Obama’s hot mic moment means for our nation’s security.
At The Corner, Veronique de Rugy posts a chart comparing the Obama and Ryan budgets.
Talking Points Memo‘s Brian Beutler suggests Chief Justice John Roberts may vote to uphold Obamacare on the grounds that it is a tax.
Steve Benen defends Obama’s hot mic moment with Dmitri Medvedev.
ThinkProgress says there is a “smear campaign” against shooting victim Trayvon Martin.