So what did everyone think of the arguments today?

Seems like Badgenome's prediction sounds about right, with the swing votes more or less coming with the attitude of "Probably not constitutional, but it's convenient!"

The language of some of the questions was actually far harsher than I expected. On the whole, I don't think today was a good day for the Government's side. But, I'm not usually a follower of the Supreme Court... perhaps they always ask questions like this, and vote another way, anyway.

We do know that, though. The federal government has hitherto elected to mostly keep out of that arena. Remember, back in the 40's the Supreme Court upheld the federal government's ability to regulate any insurance transaction if it is interstate, and in fact the feds already DO regulate auto insurance as a whole. Auto insurance is not immune to anti-trust laws, for example. The feds decided, by statute, to reserve more specific regulations to the states. But this does not mean the federal government is eternally forbidden from doing more. Insurance, auto or otherwise, is inherently a commercial activity that impacts interstate commerce, and thus susceptible to federal regulation.

Leaving aside how tangential this discussion is (just because something is an inevitable fact of modern life, does not mean it is a guaranteed constitutional right!) this is wrong. Freedom of speech is not some Medieval sanctuary law that gets you out of trouble when you claim it. This point is not debatable.

Freedom of speech, like every other right under the Constitution, is prone to regulation. The fact that enforcement generally, but not always, is restrained enough to give violators a chance to comply with the regulations before leading to arrest does not defeat the fact that the speech remains regulated. It's not even strictly true that the government is unable to regulate the content of free speech, it's merely put against the incredibly-high burden of strict scrutiny. Even prior restraint laws have been held by the Supreme Court to be valid in the past.

Perhaps your New York cases resulted from a state-specific law or rule, or the ruling was simply misinterpreted by the news, or the district court judges felt sympathecic. I don't know. But the overall question has been long settled: freedom of speech is not an absolute right, and exercising it improperly can lead to a penalty.

But we're now getting ridiculously off-topic. You're now trying to apply different free speech regulation analyses onto a question that revolves around the commerce clause. It's the wrong tool for the job. The issue at hand is simple: does the commerce clause grant the federal government the right to incentivize individuals without health insurance to acquire health insurance? The answer is more complex. But I can assure you that free speech restrictions aren't going to enter that analysis.

As a final aside to your last point above, the legal argument for federal taxes is based specifically on articles of the Constitution and an amendment to same. Nothing more, nothing less.

Then you are the first person I know who knows someone like that. And while I wonder who exactly paid for that "free" care, I feel compelled to point out that 1) such folks are a small minority that they weren't even brought up to counter the government's allegation that health care is inevitably going to be used, and 2) even that free health care falls under the auspices of federal regulation. It is well settled that all health care, at the moment it is offered, is prone to regulation.

I can't say I'm convinced, but for the sake of discussion I'll agree to call your argument a lateral example instead. My question still stands: what is the legal principle behind this argument? Constitutional, statutory, or even rule of construction, any will do. And "I don't feel comfortable with the implications" is not really a legal argument, although I concede that it is commonly used by judges and Justices as the honest impetus behind some rulings. It may even play a deciding role in this case, judging by Kennedy's questions. But it's not a legal argument.

Again, no. The analyses in those cases ends at that point because that ultimately is the deciding issue; courts rarely go beyond the narrow deciding question. I forget the precise term right now, but in essence courts as a general rule do not extend their analysis any further than the bare minimum. Think of this very case: had the Court decided yesterday that the issue is moot due to this being a tax, they wouldn't have even bothered addressing the rest of the issue.  Pointing to those rulings as somehow dispositive in our hypothetical example is futile.

As for the part about state laws, see my response to badgenome, above.

I agree that Wickard goes too far for my tastes. But it's definitely established precedent, one that's fairly relevant to the issue at hand, and dispositive towards rather than against the constitutionality of this law.

It's not uncommon, although generally most of the Justices have long since made up their minds, and are simply seeking to sway more Justices to their side and/or find nice statements to utilize in their opinions.

I'm inclined to think that, once Kennedy finds some limiting principle that sounds nice in his head (although busting out tort principles here? REALLY?!), he'll vote for, and maybe bring Roberts along too. If he can't, it'll probably go 5-4 against. I don't see any of the liberal Justices changing course.

I'm not arguing that the federal government can't regulate insurance, but I don't see how it's any clearer that the feds can compel people to buy auto insurance than it is that they can compel people to by health insurance. I mean, I guess we'll find out shortly if they can, but it's still an unprecedented reading of the commerce clause.

A) Requring to buy auto insurance is a whole different thing to regulation.

B)  You seem to be missing the point entirely.  Which you keep doing.  Rights have only very specific ways in which they can be infringed on.  Which involve direct and specific harm to someone.  This is based on the arguement you presented that healthcare should be considered a right.

C)  Except... there have been exact cases on this, where that has exactly been the ruling.  I'd look it up, but when I google search it, i just keep getting bombed by the healthcare debate.

D) Yet you support and are argueing something that's farther along then that?  Afterall Wickard said he had to destroy his crops because his making a product caused a problem with wheat commerce.  Versus this, which is argueing that someone is effecting interestate commerce by NOT DOING ANYTHING and therefore MUST buy wheat.

It's analogus to telling Wickard that he HAS to buy wheat for farm consumption.

Well the thing is.  The harshest questions came from the swing votes, which could be couched to suggest that such questions were a way to deflect criticism from the right considering he also talked about how big a problem healthcare is.  Which of course... is completely irrelevent to constitutionality, so why this has been such a big arguement i can't fathom.

My issue is whether or not, if the individual mandate is struck down, the entire law will follow with it. There is stuff in the law that this country has distinctly needed for a long time (namely the ability to tell insurance companies that you can't stop payout to sick individuals, or deny coverage for individuals on pre-existing conditions), and other ideas that are simply good ideas (like requiring health insurance companies to keep children on their parents' plans if they lack other coverage through age 26. Keeps the pressure off the young people for movement into stable adulthood).

Granted, i suppose we would just have to wait for the next time democrats have control to put the constitutional parts of the provision back through, but there's going to be substantive damage to the health-care of individuals in this country if the whole act goes down.

...I'm just going to assume you've forgotten why we got on that tangent in the first place, and let it rest.

1) No, rights can be, and are, infringed without involving "direct and specific harm to someone," and more importantly

2) I said health care is an inevitability, not a right.

And I don't believe you. At best, such language would be mere dicta. But again, consider it dropped.

Support? Not necessarily. Arguing? Yes. This thread is not "what do you think the legal outcome should be?" It's "here's some resources for how the Court may rule." There's routinely a difference in how I think the courts should rule, and how they do.

Look, this is a constitutional law question regarding the federal government. There is a simple, three-part test for such questions. In a nutshell:

1) Is there federal action? If "no," STOP: the federal government is an improper party to the action. If "yes," proceed to step two.

2) Is the federal action permitted by the Constitution? If "no," STOP: the federal government is one of enumerated powers. It can not act without the Constitution's permission, and so the action is unconstitutional. If "yes," proceed to step three.

3) Is the federal action prohibited by the Constitution, treaty, or federal statute? If "no," STOP: the action is legal. If "yes," STOP: the action is illegal. Keep in mind though that if the bar is a treaty or federal statute, the Congress can elect to overrule those bars and proceed anyways: only the federal Constitution is an absolute bar.

All the talk about rights, free speech analysis, slippery slope lateral equivalents, etc., none of these belong in this discussion. All you need to do is go through the steps above. The main snag here is clearly step two. The relevant legal facts are as follows:

Health care and health care insurance both clearly under the domain of the commerce clause, and can be regulated at the point it is utilized. Health care is used by every American, often even before birth. People without health insurance, in the aggregate, have an impact on interstate commerce by utilizing health care on someone else's dime. On the other hand, this law attempts to regulate action that has not yet occured, and it seeks to compel behavior rather than merely regulate it. Are these last two factors enough to find that the commerce clause does not apply?

I'm inclined to think yes, albeit by a narrow margin, because of the reality that use is inevitable, and the impact on interstate commerce is very real. This wouldn't even be the first time the federal government compelled citizens to action: every adult male citizen must register for the draft, and the penalty for violation there (loss of liberty) is weighed higher than the penalty here (loss of income). Does this have uncomfortable legal ramifications? Yes. But the legal analysis is unrestricted by my mere discomfort.

Of course, judging from some of the questions asked yesterday, the discomfort may ultimately be the deciding factor.

Does the original intention of the constitution not matter when deciding these things? Because, you guys are debating by whether this is covered by the commerce clause... but the commerce clause is clearly used way more (and, arguable, very differently) to the way the founders intended (or, so it would seem, from the rest of the constitution, and the writings of (most of) the founders).

Question: would such a law have been considered fair game 50, 100, 150 years ago? If not, why is it today? Has the commerce clause changed in anyway? One can argue that the reading of it has changed, but that seems to take away all intention, and effectively turns to Constitutionality into who's the best at arguing semantics... and then, really, the Constitution doesn't exist at all.