The Supreme Court's conservatives, and swing voter Justice Kennedy, have shown some hostility to the government's argument on the constitutionality of the Affordable Care Act's individual mandate, according to
early reports.
Critics of the law argue that if the government can require Americans to buy medical insurance, it could require virtually anything else that might improve health or lower health care costs, like forcing Americans to join a gym or buy broccoli.
A potential swing vote on the court, Justice Anthony Kennedy, turned to that point early in Tuesday’s session, asking Solicitor General Donald Verrilli Jr. if the government could require purchase of certain food, The Wall Street Journal reported. Some conservative justices also expressed concerns that the mandate could significantly alter the powers of the federal government, according to USA Today.
SCOTUSblog's Tom Goldstein has been at the Court, and
provides brief updates. His latest:
Based on the questions posed to Paul Clement, the lead attorney for the state challengers to the individual mandate, it appears that the mandate is in trouble. [...] Perhaps the most interesting point to emerge so far is that Justice Kennedy’s questions suggest that he believes that the mandate has profound implications for individual liberty: he asked multiple times whether the mandate fundamentally changes the relationship between the government and individuals, so that it must surpass a special burden. At this point, the best hope for a fifth or sixth vote may be from the Chief Justice or Justice Alito, who asked hard questions to the government, but did not appear to be dismissive of the statute’s constitutionality.
Adam Bonin will have a full report on the day's arguments later today.
9:25 AM PT: Arguments are done for the day, and most observers seem pessimistic on the survival of the mandate:
Jeffrey Toobin on CNN re health care: 'Based on what we've seen today, I think this law is in grave, grave trouble.'
— @HuffPostMedia via TweetDeck
Here's more from
SCOTUSblog:
If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive. If he does, he may take Chief Justice John G. Roberts, Jr., along with him. But if he does not, the mandate is gone.