WASHINGTON -- Rick Santorum will make an appearance on the steps of the Supreme Court on Monday, when the Court will commence three days of arguments as to whether President Obama's health care overhaul is constitutional.

Santorum will speak to the press around midday, a campaign spokesman told The Huffington Post.

For the last month, Santorum has made health care the central theme of his campaign, charging that frontrunner Mitt Romney is "uniquely disqualified" from running against Obama, because Romney passed a health care overhaul as governor of Massachusetts that included a mandate to buy health insurance, like Obama's law.

On Sunday night, Santorum became angry and cursed at a New York Times reporter who he felt had taken out of context his comment that Romney is "the worst Republican in the country to put up against Barack Obama." Santorum told the reporter, Jeff Zeleny, that he was "the worst Republican to run on the issue of Obamacare, and that's what I was talking about."

As national attention turns to Obamacare, Santorum has an opportunity to create momentum in the Republican presidential primary, heading into primary contests in Wisconsin, Maryland and Washington, D.C. on April 3 (he is not on the ballot in D.C.). He is expected only to be competitive in Wisconsin, and even there it is an uphill battle, with the only recent poll in the state showing Santorum down 13 points to Romney.

If Santorum loses all three contests on April 3, it may be hard for him to survive through April to May. After the April 3 contests, there are no primaries for three weeks, and on April 24, Santorum faces a difficult lineup of states, with challenges in his home state of Pennsylvania and four other states voting that day that are advantageous for Romney: New York, Connecticut, Delaware and Rhode Island. In May, however, there are some primaries that favor him in Southern states.

FROM:  HUFFINGTON POST

DAY 2  MARCH 27, 2012

Obamacare Foes Score Points, But Kennedy's A Wild Card

Three of the most conservative justices on the U.S. Supreme Court hammered the government’s top lawyer in oral arguments over the constitutionality of the healthcare reform act today. But swing Justice Anthony Kennedy shifted from hostile questions to apparent support for the government’s key position by the end of the two-hour session.

The marathon session seemed to favor the challengers, if only because U.S. Solicitor General Donald Verrilli spent most of his time on the ropes. It’s always dangerous to predict how a Supreme Court case will go based on oral arguments, however. No one seemed to eliminate the lightly-discussed argument that Congress had the power to pass the law under its broad taxing authority.

“I think we won today — but that’s not how courts decide things,” said Bill McCollum, a partner with SNR Denton in Washington and former attorney general of Florida, which brought the case challenging the law on behalf of 26 states. McCollum, who attended the arguments in the packed chambers of the Supreme Court, said Kennedy appeared inclined to side against the individual mandate “but he asked some probing questions of the state side that might lead you to believe he could go the other way.”

Late in the session Kennedy mused that perhaps the health care market is different from other markets and could require the sort of federal regulation Congress enacted. “That’s my concern in the case,” Kennedy said.

Supreme Court litigator Andrew Pincus with Mayer Brown faced a similar barrage of questions when he argued for AT&T in the closely watched AT&T vs. Concepcion last year.

“Scalia asked three hostile questions right out of the box and the reporters all wrote `Scalia sides with plaintiff lawyers,’” Pincus said. “Then he wrote the opinion” awarding AT&T the win, he said.

The early going was certainly tough on the government’s top lawyer, facing nine justices for the second day in a row. Chief Justice John Roberts peppered Verrilli with questions about how the law compelling everybody to buy health insurance was different than a law requiring people to buy cellular phones so they can call 911 in an emergency, or broccoli. The Obama administration says healthcare is unique because everybody will be a consumer sooner or later, but Roberts didn’t agree, saying everybody uses emergency services and buys food, too:

There’s this health care market. Everybody’s in it. So we can regulate it, and we’re going to look at a particular serious problem, which is how people pay for it. But next year, they can decide everybody’s in this market, we’re going to look at a different problem now, and this is how we’re going to regulate it. And we can compel people to do things — purchase insurance, in this case. Something else in the next case, because you’ve — we’ve accepted the argument that this is a market in which everybody participates.

Justices Antonin Scalia and Samuel Alito also pressed relentlessly with questions about what made healthcare different, and how they could define the limits on Congressional power if they allow forced purchases of insurance. Alito was particularly concerned about the subsidies embedded in the law that flow from young, healthy citizens to older ones with bigger medical bills. He noted that the average individual health policy costs $5,800 yet young people consume less than a tenth of that each year, casting doubt on the government’s argument that the law is necessary to prevent the uninsured from shoving their costs on the insured.

“You can’t just justify this on the basis of their trying to shift their costs off to other people, can you?” he said.

Verrilli said the young will get other benefits under the law, such as guaranteed access to insurance, and Congress has imposed similar cross-subsidies in other markets such as telephone service and milk.

Scalia, Alito and Roberts seemed either hostile to the mandate or at least concerned about its breadth, and Justice Clarence Thomas, who asked no questions, is assumed to be a skeptic as well. Alito, at one point, delivered a “question” that sounded more like a brief for the challengers:

The reason why there is cost shifting is because the government has mandated that. It has required hospitals to provide emergency treatment, and instead of paying for that through a tax which would be born by everybody, it has required — it has set up a system in which the cost is surreptitiously shifted to people who have health insurance and who pay their bills when they go to the hospital.

But the challengers need five votes and Justice Anthony Kennedy didn’t offer them much support. He, too, peppered the government lawyer with questions including where the limit lay on Congress’s power to regulate commerce.

Your question is whether or not there are any limits on the Commerce Clause. Can you identify for us some limits on the Commerce Clause?

Verrilli proposed a test which would leave “forced purchases of commodities” unconstitutional but allow for Congress to dictate the method of payment — in this case insurance for healthcare costs that are unpredictable and can overwhelm people who aren’t financially prepared for them. That seemed to satisfy Kennedy, who toward the end of the arguments said:

I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in the case.

It would be dangerous to predict how Kennedy will vote in this case, said M. Miller Baker, a veteran Supreme Court litigator with McDermott Will & Emery in Washington. Jones Day attorney Michael Carvin, representing the the National Federation of Independent Business, tried to appeal to Kennedy by comparing what the law does to individuals with federal laws Kennedy has voted to strike down that took away powers that belong to the states.

“Kennedy could come down either way on this,” Baker said. “There will be uncertainty up until the end.”

None of the justices seemed concerned about the tax question, perhaps because it was discussed exhaustively yesterday and the Obama administration was forced to concede that it considered the penalty a tax for some purposes and not for others. McCollum said there are other good reasons for the government to go lightly on this one: Paul Clement, arguing for the states, said the penalty might be considered a “direct tax,” which under the Constitution must be apportioned among the states. The only reason the federal income tax is exempt from this requirement is because of a constitutional amendment.

The argument that the entire law can fall under Congress’s taxing authority “is lost and I think the reason it’s lost is because not even Breyer and Ginsberg believe in it,” McCollum said.

If the day went badly for the government’s top lawyer, that may be because the case presents fiendishly complex questions of law and the philosophy of government. CNN legal analyst Jeffrey Toobin said the arguments were a “train wreck for the Obama administration” and said Verrilli wasn’t prepared. Baker disagreed. “Don Verilli’s doing something unprecedented –he’s arguing three days in a row before the Supreme Court,” Baker told me. “When somebody else does that, they’ll be in a position to critique.”

FRON:  http://www.forbes.com/sites/danielfisher/2012/03/27/justices-hammer-government-on-obamacare-mandate/

Today, March 27, 2012, the Supreme Court will hear two hours of oral argument concerning the constitutionality of the individual mandate. The individual mandate is the essential component of ObamaCare. It requires millions of Americans to buy and indefinitely maintain health insurance or face annual penalties.

The individual mandate marks the first time in the 220-plus year history of our Constitutional form of government that Congress has required American citizens to purchase a product (in this situation, health insurance) from a private company simply because they are American citizens. Previously, Congress provided us with incentives to buy certain products; it did not require us to make those purchases. For example, Congress provided extra money toward the purchase of a new car via the "Cash for Clunkers" program if we chose to buy a new car, but Congress did not require anyone to buy a new car.

The principle behind the individual mandate – that Congress can compel Americans to purchase a product – is a game changer for our country. Should the Supreme Court uphold this bold assertion of power, the Court would be giving Congress virtually unlimited power under the Commerce Clause. From then on, Congress could tell us what to buy and what not to buy (no matter the product); if we refused, we would be hit with annual penalties.

This is not mere speculation. It is the position being advanced by the federal government. During oral argument in a federal court in Pennsylvania in another ObamaCare case, the federal government's attorney acknowledged to the judge that, under the government's theory of the Commerce Clause, if Congress determined that following the adage "an apple a day keeps the doctor away" would improve Americans' health, then Congress would be within its Commerce Clause power to order Americans to purchase apples. Further, the government's attorney did not, and could not, name any requirement to purchase a commodity from a private company that Congress would lack the power to enact.

Because the broad expansion of federal power underlying the individual mandate would, if accepted, lead to a virtually unlimited power for Congress, it is critically important that the Supreme Court invalidate the individual mandate (as well as the entire ObamaCare law). As the Supreme Court haS

said repeatedly, the Constitution itself illustrates that Congress's power under the Commerce Clause has limits. There are no limits, however, to Congress's power under the federal government's view of the Commerce Clause.

Indeed, should the individual mandate be upheld by the Supreme Court, our nation and system of government will be forever changed. Although the Constitution deliberately divides power among the various branches and levels of government so that no single individual or entity may wield unlimited power, acceptance of the federal government's radical view of the Commerce Clause would fundamentally alter the constitutional balance of power.

For more information about the options the Court has in resolving the ObamaCare case, read my previous post here.

The American Center for Law & Justice ("ACLJ") filed an amicus brief on the

individual mandate issue on behalf of itself, 119 Members of the United States Congress, and more than 144,000 supporters of the ACLJ's efforts to overturn ObamaCare. You can access that brief here.

The ACLJ also filed its own challenge to ObamaCare and the individual mandate. That case is pending at the Supreme Court. You can access information about that case here and here.

The audiotape of the individual mandate oral argument will be available this afternoon on the Supreme Court's website by 2:00 p.m. eastern time. You can access the Court's website here.

3.27.2012 Update:

During oral argument today, a number of Justices focused on the main problem with the individual mandate: that, should the mandate be upheld, it would give Congress unlimited power under the Commerce Clause and permit Congress to place additional mandates on American citizens to purchase other products from private companies or face annual penalties. Up until now, the Supreme Court has recognized that Congress’s power under the Commerce Clause has limits. The federal government today, as in the other ObamaCare cases, was unable to articulate any true limits to Congress’s powers should the individual mandate be upheld.

FROM:  http://aclj.org/obamacare/day-two-supreme-court-obamacare-argument-individual-mandate

DAY 3  -[ MARCH 28, 2012

Supreme Court closes historic ObamaCare arguments, as public awaits verdict

The Supreme Court on Wednesday wrapped up its exhaustive three-day session which will determine the fate of the federal health care overhaul, ending with what is arguably the most consequential question of the case -- if the individual mandate is struck down, does the law survive?

The nature of questioning over the last few days signaled several judges have serious doubts about the law. But they hardly indicated which way the often-divided court would rule, with a decision expected by summer.

significant domestic policy achievement is a blockbuster. On the final day of arguments, the gravity of the decision was evident, as justices struggled over what to do with the rest of the Affordable Care Act if they also rule that its central provision is out of bounds.

The question dealt with whether the entire health care law should stay or go or be revised if the so-called individual mandate -- the requirement that everyone buy health insurance -- is struck down. That, and a debate over the law's Medicaid requirements, filled the last day of discussion in the landmark hearings.

On the mandate, the justices broadly examined the other parts of the law which the Obama administration was trying to save while its opponents asked for complete repudiation. The discussion centered on what to do now with this case but also on concerns over the proper role for the courts in interpreting what Congress would want done with a law that's been changed from its original version.

Justice Antonin Scalia raised concerns over the role of the courts in going through this law and others line by line looking for parts to strike down.

"This is really a case of first impression," Scalia said. "I don't know another case where we have been confronted with this decision. Can you take out the heart of the act and leave everything else in place?"

To that end, Scalia made specific mention of a notorious provision of the law, dubbed the "Cornhusker Kickback," which along with other sweeteners were added to gain votes. That sort of legislative wheeling and dealing made it difficult for some justices, especially Scalia, to see how the rest of the ACA could survive without the mandate.

Some justices were open to keeping at least parts of the law, though.

Justice Ruth Bader Ginsburg likened it to a preference for a salvage operation rather than a wrecking operation.

Ginsburg made note of many provisions in the ObamaCare law that have a modest relationship to the controversial individual mandate and could work just fine without the forced conscription of Americans onto health insurance rolls.

"I mean, it's a question of whether we say everything you did is no good, now start from scratch, or to say, you know, there are many things in here that have nothing to do, frankly, with the affordable healthcare, and there are some that we think it's better to let Congress to decide whether it wants them in or out."

Echoing that view was Justice Elena Kagan, regarding the creation of local health care exchanges to pool individuals into collectives that can bargain for better rates.

She said sometimes half-a-loaf is better than no loaf and Congress "seems like they want half a loaf."

Justice Sonia Sotomayor said she agreed with that sentiment, but lawyer Paul Clement, arguing on behalf of the 26 states challenging the law, said that sometimes half a loaf is worse and that the entire law should be set aside.

Clement cited a landmark campaign finance case that he said led to decades of uncertainty and problems in political races. "This court looked at a statute that tried to, in a coherent way, strike down limits on contributions and closely related expenditures," Clement offered about the case Buckley v. Valeo. "This court struck down the ban on expenditures, left the contribution ban in place, and for four decades Congress has tried to fix what's left of the statute, largely unsuccessfully."

The Obama administration's view is that only two parts of the law -- guaranteeing insurance for all people and at a rate affordable for all participants -- should go down if the individual mandate is invalidated.

But Justice Anthony Kennedy expressed concern with that view, saying it might end up worse for insurers who would still need to cover customers added on to their roles.

"We would be exercising the judicial power if one act was stricken and the others remained to impose a risk on insurance companies that Congress had never intended," Kennedy said. "By reason of this court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike the whole."

In trying to preserve those other parts of the law, Deputy Solicitor General Edwin Kneedler noted portions of the ACA that are already in effect and made mention of the provision allowing some adult children to obtain coverage through their parents.

"It's going to bankrupt the insurance companies," Scalia shot back.

Sotomayor then fired off a line of argument from Tuesday's hearing saying she thought 26-year-olds were healthy. A day earlier, the justices seemingly opposed to the law raised concerns over the costs of the mandate on younger, more healthy people.

Chief Justice John Roberts wondered "where is the sharp line" to draw in determining what to keep and what to exclude.

Kneedler said that line is based on what Congress called essential elements of the law.

The Court appointed lawyer Bartow Farr to defend the 11th Circuit's ruling that the entire ACA should be upheld. He said the rest of the act still "serves the central goals that Congress wanted" of near universal care at an affordable cost.

But Kagan noted that based on the experiences of the states, Congress took the Massachusetts model which tied the individual mandate to the rest of the law.

The afternoon session focused on one specific provision of the law that expands the Medicaid program providing health care to America's poor. The federal-state partnership was created in 1965 and has expanded in the years since. Clement, again arguing on behalf of the 26 states fighting the law, said the expansion under the ACA was coercive, in part, because of the massive costs involved and his contention that the states have no choice but to maintain participation in the program.

Clement had barely finished his first sentence when Kagan immediately asked him why it was coercive for the federal government to give billions of dollars in additional aid to the states. "There are no matching funds requirements, there are no extraneous conditions attached to it, it's just a boatload of federal money for you to take and spend on poor people's healthcare," she declared. "It doesn't sound coercive to me, I have to tell you."

To that, Clement said the government's money was still coercive because it assumed the states would take the money and that Congress was leveraging their prior participation in the program. Kagan pressed further with a hypothetical asking Clement if he'd accept a lucrative job. He said it would depend on where that money came from.

"Wow! Wow!" Kagan exclaimed in wonderment. "I'm offering you $10 million a year to come work for me and you are saying this is anything but a great choice?" Clement sharply replied, "Sure, if I told you, actually it came from my own bank account."

That exchange served as an appetizer for a meal full of questions from the Court's more liberal members peppering Clement. Sotomayor said she had troubles with Clement's arguments on the funding matter: "We're going to say to the federal government, the bigger the problem, the less your powers are. Because once you give that much money, you can't structure the program the way you want. ... I don't see where to draw that line."

Perhaps the biggest issue of Clement's argument, if not the entire case, is addressing whether the states are forced to accept the Medicaid expansion under the threat of losing all preexisting Medicaid funding. Justice Stephen Breyer was the most vocal against this idea saying it would be "unreasonable" for a government official to actually take all money away from a state for noncompliance with the new mandate.

Roberts didn't seem too keen on that argument, focusing instead on the ability, however unlikely, of the Health and Human Services secretary to withhold money.

"So why shouldn't we be concerned about the extent of authority that the government is exercising, simply because they could do something less?" he asked.

Solicitor General Don Verrilli, who was criticized in some quarters for his performance Tuesday, said there was no significant history to suggest an HHS secretary would withhold funds -- after all it's in everyone's interest to make sure money is available for health services, a point backed by Kagan.

But Roberts likened the threat of possibly withholding funds to Dirty Harry, saying it was unlikely the states would reply to Washington's demands with "make-my-day" bravado.

For Justice Anthony Kennedy, the issue of compulsion raised concerns of whether the central government was getting too involved in people's lives.

The close of the case also brought the curtain down on nearly six-and-a-half hours of arguments over the health care law. Just before they adjourned, the two lawyers offered a final plea to the court. Verrilli spoke first about the problems of people not being able to afford health insurance.

"There is an important connection, a profound connection between that problem and liberty. And I do think it's important that we not lose sight of that," he said.

Clement soon followed to say, "I would respectfully suggest that it's a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not."

Click here for full coverage of the ObamaCare hearings.