Judging by the questions posed by Supreme Court Justices at yesterday’s highly anticipated arguments at the Supreme Court over the individual mandate in the president’s unpopular health reform law, the court appears divided on whether or not the law should be upheld.
CNN is reporting that all eyes were on Justice Anthony Kennedy yesterday, the justice considered to be a swing vote in the case, who did not appear impressed with the government’s arguments.
Kennedy was quick to cut to the heart of the debate over the individual mandate, the provision which forces people to buy insurance or suffer a penalty, when he asked Solicitor General Don Verilli to explain what constitutional powers the government had to do this.
“Can you create commerce to regulate it?” Kennedy asked. He then clarified that the mandate amounted to “telling an individual he has the obligation . . . he must act” to purchase insurance. In his opinion, this “threatens to change the relationship between the government and the individual in a profound way,” Kennedy said.
He acknowledged that the Court normally gives Congress the benefit of the doubt on laws that it passes but in this instance there was a “heavy burden of justification” necessary for supporters of ObamaCare to prove its legal worth.
Fox News reporter Shannon Breen, who was sitting near Sen. Patrick Leahy, a staunch supporter of the law, said she saw him “wince” at Kennedy’s remarks and line of questioning.
Chief Justice John Roberts also asked pointed questions of the government, saying that if Congress could regulate health care in the name of commerce, “all bets are off” on a range of areas subject to federal oversight.
Justice Antonin Scalia also addressed this aspect of the law, which many see as an unprecedented overreeach by the government.
“The argument here is that this … may be necessary, but it’s not proper because it violates an equally evident principle in the Constitution, which is that the federal government is not supposed to be a government that has all powers,” Justice Scalia said. “That it’s supposed to be a government of limited powers. And that’s what all this questioning has been about. What is left? If the government can do this, what, what else can it not do?”
Liberal Justices Ruth Bader Ginsburg, Sonya Sotomayor, Elena Kagan and Stephen Breyer all asked questions that seemed to defend the law.
Attorney General Eric Holder and Health and Human Services Secretary Kathleen Sebelius were in the courtroom for this second day of arguments, as were other prominent lawmakers from Capitol Hill.
At the end of the day’s arguments, some court watchers were decidedly pessimistic about the possibility that the Court would uphold ObamaCare.
“This was a train wreck for the Obama administration,” said CNN legal analyst Jeffrey Toobin. “This law looks like it’s going to be struck down. I’m telling you, all of the predictions, including mine, that the justices would not have a problem with this law, were wrong. Justice Kennedy, the swing vote, was enormously skeptical. Justice Alito, Justice Scalia were constantly skeptical. Justice Thomas didn’t say anything, but we know his position on the issue. The only conservative justice who looked like he might uphold the law was Chief Justice Roberts, who asked hard questions of both sides.”
Most recent polls show that while a majority of Americans think the health care industry needs an overhaul, 56 percent don’t believe ObamaCare is the way to do it and want to see the law repealed.
Today will be the final day of arguments and will be split into two session. The first will examine whether or not the entire law will have to be discarded if the individual mandate is struck down. The second will examine the law’s provision to expand Medicaid coverage which the challenging states say is coercive.
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