by Jeremy Leaming
The spin is in on today’s health care law oral arguments – Paul Clement, the attorney for the state’s challenging the law’s minimum coverage provision, is awesome, and the provision is in trouble.
But, as noted yesterday by constitutional law professor Garrett Epps you’re on wobbly ground when predicting Supreme Court opinions based on oral argument theatrics. Sure, Clement is an outstanding high court litigator -- we’ll take it from SCOTUSblog founder Tom Goldstein who lavished praise on Clement at an oral argument preview last month, calling him one of the greatest attorneys of his generation.
What we can tell from today’s oral argument is that the Solicitor General Donald Verrilli, Jr., largely focused on Congress’s constitutional authority to regulate interstate commerce. The government has also argued that Congress’s constitutional power to tax and spend also supports the minimum coverage provision. Most of the justices, however, we're glued to the commerce clause question.
SCOTUSblog’s Lyle Denniston, a veteran Supreme Court correspondent, wrote of today’s oral argument that Justice Anthony Kennedy, “after first displaying a very deep skepticism,” provided toward the end of oral argument “the impression that he might yet be the mandate’s savior."
Additionally, the high court’s four moderate to left-of-center justices appear inclined to vote in favor of the ACA provision, which requires many to start carrying a minimum amount of health care insurance in 2014.