On the first day of arguments the Court wrestled with the question of whether the health insurance premiums constituted a tax, but since the Obama Administration had twisted itself like a pretzel to claim it was not a tax, after once claiming it was a tax, that issue should be easy since the comments from Justices indicated they were in agreement with one another.
Day two was consumed by arguments on the centerpiece of the law: its constitutionality and the limitations on Congress’ ability to make laws on interstate commerce. We will return to these issues later.
Day three dealt with whether the entire law would fall if any part was found to be unconstitutional or whether it was severable, and such provisions as requiring pre‑existing conditions to be covered could still stand. This is an important point, but we will spend little time on it in this essay because we believe the law is severable and Congress does have the right to dictate certain minimum coverage provisions in the health care market place. However, the Court may well decline to parse through the nuances of which provisions to save. Speaker Pelosi once told the House to pass the bill and then we will see what is in it. The Court may decline that offer.
But the day two issues are the big ones here . . . check it out here.