• Demonstrations intensify as health care hearings roll on
• Analysis: Roberts will likely vote to strike down Obamacare
• Day 2: Audio, video and transcript
• Day 1: High court unlikely to delay health care ruling
• Day 1: Health care protests start small, expected to grow
• Day 1: Audio, video and transcript
Justices of the U.S. Supreme Court raised serious doubts about the central provision of President Obama’s national health care law Tuesday as oral arguments over the law’s constitutionality rolled through a second day.
While many Supreme Court watchers were predicting early on that it would be easy for the Obama administration to defend the constitutionality of the health care law’s mandate requiring individuals to purchase health insurance, those expectations collapsed moments after the arguments began.
From the start of the two hour session, Obama’s top lawyer, Solicitor General Donald Verrilli, endured a tough grilling not only from the more conservative members of the court, but also from Justice Anthony Kennedy, a Republican appointee who is often considered the swing vote on the narrowly divided court.
Kennedy seemed sympathetic to one of the central challenges to the law — that the mandate was an unprecedented use of the Congress’s power under the Commerce Clause.
He suggested that the Obama administration had a “heavy burden of justification” to demonstrate that the mandate is constitutional given that it “changes the relationship of the federal government to the individual in a very fundamental way.”
Justice Sam Alito challenged the Obama administration’s argument that the health care market is unique because virtually everybody would eventually need medical care, saying the same was true for burial services.
Chief Justice John Roberts also noted that the mandate doesn’t merely force people to insure against emergency expenses that they would otherwise thrust upon the taxpayer, but requires them to purchase more comprehensive policies.
Justice Antonin Scalia was the most scathing in his critique of the government’s position, saying the mandate violated the principle that the federal government’s powers are limited.
If all four of these justices vote against the mandate, it would almost certainly mean a 5-4 defeat for the Obama administration because Republican-appointed Justice Clarence Thomas, who traditionally asks no questions during oral arguments, is seen as a lock to oppose the mandate given his prior rulings.
Supporters of the law rested their hopes on the second half of arguments, when Kennedy fired tough questions at lawyers representing opponents of the law, Paul Clement, who represents 26 states led by Florida, and Mike Carvin, who represents the National Association of Independent Business. At one point, Kennedy sounded sympathetic to the view that the health care market is different because a “young person who is uninsured is uniquely proximately very close to affecting the rates of insurance.”
The Democratic-appointed justices on the Supreme Court — Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor — all appeared likely to uphold the mandate, even coming to the aid of Verrilli on several occasions when he ran into difficulty.
Ginsburg said to Verrilli: “I thought what was unique about this is it’s not my choice whether I want to buy a product to keep me healthy, but the cost that I am forcing on other people if I don’t buy the product sooner rather than later.”
The justices on Wednesday will hear arguments for the third and final day. Among the issues the court will consider is whether the entire law should be struck down if the mandate is found unconstitutional. It also will consider the constitutionality of another provision that would expand Medicaid.
