The second day of oral arguments have already concluded, and the omens do not look good for ACA's survival. But below is a round-up of reaction to Day One (Day Two reax to come). What was being debated yesterday:
Adam Serwer bets that the tax/penalty distinction won't delay the ruling:
The justices seemed clear that they would not duck the historical moment by avoiding a ruling on Obamacare under what might be called a tax dodge. Judging by their remarks, the Obama administration is likely to see a verdict on its signature domestic program prior to the November election. But there's still no telling what that verdict might be.
Patrick Caldwell nods:
It's not too surprising to see the court tracking this way. Neither the plaintiffs nor the defendants thought the Anti-Injunction Act was relevant to the case, so the Supreme Court had to hire an outside attorney, Robert Long, to air the case. Obama's Solicitor General Donald B. Verilli Jr. in fact argued before the court Monday that the justices shouldn't read the individual mandate as a tax in this sense, a clear sign that the administration thinks the court is on its side and wants to dispatch with the constitutionality questions before the president's reelection campaign this fall.
Ilya Somin adds some caveats:
First, the justices sometimes ask questions for rhetorical effect or play devil’s advocate. I don’t think they are doing so here, but obviously I can’t be sure. Second, it is theoretically possible that the constitutional definition of what qualifies as a “tax” is broader than the [Anti-Injunction Act] definition.
Jeffrey Toobin isn't predicting anything but worries about a court radical enough to decide Citizens United:
In weighing how the contemporary Supreme Court behaves, there’s a relevant precedent here. In the Citizens United case, the Supreme Court not only rejected a major piece of legislation but created a constitutional standard that makes any meaningful campaign-finance legislation next to impossible to pass. The question is whether they will do the same with health-care reform.
Dahlia Lithwick praises the Court's willingness to debate dusty old laws:
One question is why we went to all the trouble of briefing, arguing, and roping someone in to defend the Anti-Injunction Act, if the court had every intention of blowing off the first gate and hearing all three days worth of argument. That’s the wrong question. The court actually did what it does best this morning—reading complex old statutes (when Kennedy asked Long why the wording of the Anti-Injunction Act was so weird, Long basically replied that’s how people wrote back in 1867), asking practical questions, and reaching what looked to be nearly universal agreement that they’ll hear the case this year.
The key 15 minutes from yesterday's proceedings can be listened to here.