“Can you create commerce in order to regulate it?” he asked.
The arguments revealed a familiar alignment of the court. Its four liberal justices, appointed by Democratic presidents Bill Clinton and Barack Obama, supported the government’s argument. But one of the five conservatives appointed by Republican presidents Ronald Reagan, George H.W. Bush and George W. Bush would be needed to uphold the act, and all at some point resisted the government’s position. Their sharp questioning raised doubts about whether the individual insurance mandate could survive the Supreme Court’s historic review.
Kennedy and Chief Justice John G. Roberts Jr. would seem to hold the key to the court’s eventual decision, which likely will come near the end of the court’s term in June. But a caveat is appropriate: while the justices’ questions often foreshadow their decisions, that is not always the case, especially in cases with high stakes and constitutional questions.
The question of the limits of government power has animated the nation’s debate over the health-care law since it was passed by a Democratic Congress in 2010. The law, President Obama’s signature domestic initiative, has been roundly denounced by Republican officeholders and the candidates vying to run against him in the November presidential election.
U.S. Solicitor General Donald B. Verrilli Jr., representing the government, was the first to argue Tuesday, and he immediately found himself assailed by skeptical questions from some of the court’s conservatives. The lawyers for the parties challenging the law were scheduled to present their arguments after Verrilli.
“So if I’m in any market at all, my failure to purchase subjects me to regulation?” Justice Antonin Scalia wanted to know. The court’s longest-serving justice had been seen by some of the law’s proponents as a potential ally because of a past decision in which he said the Constitution’s Commerce Clause, which allows Congress to regulate interstate commerce, gave it power in cases involving the national economy.
But Scalia gave no indication that he was convinced by the government’s argument. He asked whether, if the individual mandate were upheld, the Congress could then compel people to buy broccoli or cars.
Wonkblog’s Ezra Klein dubbed it a “bad day for Obamacare’s supporters’.
The quick read is that today went very badly for supporters of the individual mandate. As one of the experienced Supreme Court watchers who runs SCOTUSblog tweeted, “Paul Clement” — the attorney arguing against the health-care law — “gave the best argument I’ve ever heard. No real hard questions from the right. Mandate is in trouble.”