Complete Supreme Court audio from day 1 of the health care debate.
Fox News Analyst Judge Andrew Napolitano broke down how the Supreme Court will go about determining the constitutionality of the health care bill. He noted that the Supreme Court is not supposed to hear a case unless it is timely. “In other words, you can’t just ask the court to declare a statute unconstitutional because you think it’s unconstitutional. You have to have been harmed by it, or have a harm coming your way,” he explained.
There is a statute that says if someone wants to challenge a tax, then they must pay that tax first. In this case, the health care law says that if you don’t buy health insurance, then the government will extract money from you. The question Judge Napolitano says the court must first answer is, “Is that extraction a penalty, or is that extraction a tax? If it is a tax, then this 150-year-old statute would say you got to pay the tax before you can challenge.”
However, the judge thinks that from listening to the sentiment expressed today, the justices want to hear the arguments and rule on it as much as the American people want to get an answer. He doesn’t predict that the tax statute will impact the proceedings.
Shepard Smith asked him if the timing of this case is political. Judge Napolitano replied, “I think the court wants to get heavy cases off its docket so it can get back to its normal routine. If they’re anxious to resolve this, it’s a normal human anxiety; it’s not an effort to want to influence the presidential election.”
Complete Supreme Court audio from day 2 of the health care debate.
Judge Napolitano analyzes day 2 of the Supreme Court health care debate:
Judge Andrew Napolitano listened to all of the recordings from the Supreme Court hearings. He told Shepard Smith that after reading the transcript and listening the audio of the argument, it gave him two different impressions.
He said, “If you listen to the tape of the argument, you heard the Solicitor General of the United States, a very fine lawyer, nevertheless, was timid, tentative and not persuasive. And then you heard the lawyer for the states and the individuals challenging the law, who is the former solicitor for the United States, Paul Clement, he was authoritative and compelling.”
The key vote is Justice Kennedy, according to the judge, and said that he was very sharp and clear in “his concern [that if] you want to change the fundamental relationship of the individual to the federal government, you can’t do it by simple legislation.”
Judge Napolitano pointed out that justices don’t always indicate how they’re going to vote based on their line of questioning, “but if Justice Kennedy was truly revealing, the way he sounded, in his questioning today it’s a bad day for the government on the core aspect of this case.”
Complete Supreme Court audio from day 3 of the health care debate.
Judge Napolitano analyzes day 3 of the Supreme Court health care debate:
Will the entire health care law be scrapped if the individual mandate is deemed unconstitutional? Judge Andrew Napolitano explained, “Judges are supposed to presume that what Congress writes is constitutional and therefore they should only invalidate that which is clearly unconstitutional.”
He continued, “That means they should do their best to carve out of a statute the part that is unconstitutional and leave the remaining … But it is arguably an impossible task to determine what remains if you carve out of this the individual mandate.”
The judge said if the “extension of Medicaid at the states’ expense is also removed, what remains does not make economic sense, and Congress may have to start from scratch or the court may say don’t worry about starting from scratch … because laws have to have a rational basis.”
Related Link: Supreme Court Upholds Individual Mandate