The Washington Post

Fate of mandate hangs in the balance

As far as I can tell, these are the two most important developments from today’s arguments before the Supreme Court about the individual mandate.

There’s this, from SCOTUS-blog, which suggests that the conservative bloc of Justices is taking a lenient view of the challengers’ argument about the mandate’s implications for individual liberty:

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. It is not clear whether it will be struck down, but the questions that the conservative Justices posed to Clement were not nearly as pressing as the ones they asked to Solicitor General Verrilli. On top of that, Clement delivered a superb presentation in response to the more liberal Justices’ questions. 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.

This is trouble, because it suggests the conservative justices are buying the “slippery slope” argument, which holds that the mandate would constitute a fundamental change in the relationshp between government and the American people that could open the door to vast new powers for the federal government.

What’s more, there are other signs that the conservative justices are skeptical of efforts by defenders of the law to argue that even under the mandate, there are clear limits to the government’s powers. According to Washington Wire’s live blog, Justice Alito repeatedly pressed the Solicitor General to define his view of the “limiting principles” that would hold sway.

One bright spot for the government: Chief Justice John Roberts appears open to the argument that the health care marketplace is different from that of any other product. The Wire’s live blog has this exchange between Roberts and Paul Clement, the lawyer for the challengers:

Mr. Clement argues that if the government can force people to buy insurance, it can force people to buy other products, too. But then Chief Justice Roberts speaks up with his first comments that appear to help the government. The chief said the key to the government’s argument is that everyone is in the health-care market, which makes this different than other products. All the government is trying to do, he said, is regulate how health care is paid for.

We can’t know for certain what the Justices are thinking, and we need to see a transcript to better evaluate these exchanges, but for now, this has clearly not shaped up as the slam dunk for the mandate that some predicted.

Greg Sargent writes The Plum Line blog, a reported opinion blog with a liberal slant -- what you might call “opinionated reporting” from the left.


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