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Supreme Court health-care hearing: How bad does it look for 'Obamacare'?

Based on justices' questions in the two-hour Supreme Court health-care hearing, the fate of 'Obamacare' is in peril. Justice Kennedy expressed strong concerns about the individual mandate.

By Staff writer / March 27, 2012

Supporters and opponents of health-care reform rally in front of the Supreme Court in Washington, Tuesday, as the court continued arguments on 'Obamacare.'

Charles Dharapak/AP



The centerpiece of President Obama’s health-care reform law appeared Tuesday to be in serious peril after oral arguments at the US Supreme Court on the constitutionality of the law’s individual mandate.

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Based on comments and questions posed during the two hour session, the nine-member high court seems to be divided 5 to 4 on whether Congress has the authority under the Constitution’s Commerce Clause to order every American to buy a government-approved level of health insurance or pay a financial penalty.

The session was dominated by skeptical – and at times highly critical – questioning from the court’s conservative members.

Perhaps most important, Justice Anthony Kennedy, a frequent swing vote on the court, expressed significant concerns about the mandate.

“Can you create commerce in order to regulate it,” Justice Kennedy asked Solicitor General Donald Verrilli soon after he began his argument.
 “That is not what is going on here,” the solicitor general replied. “What is being regulated is the method of financing the purchase of health care. That itself is economic activity with substantial effects on interstate commerce.”

Kennedy’s comment echoed arguments made by lawyers for the 26 states challenging the independent mandate. He noted that the government was facing a “heavy burden of justification” because of the unprecedented nature of the mandate.

It is never a good sign to receive such a comment so early in an argument, especially from Kennedy. The government’s prospects seemed to tumble downward from there.

“Can you identify for us some limits on the Commerce Clause,” Kennedy asked.

Mr. Verrilli said the government’s position would not justify the forced purchases of commodities to stimulate economic demand. Lawyers challenging the mandate have said frequently it would empower the government to order Americans to buy and eat broccoli and buy American cars.

“But why not,” Kennedy asked. “If Congress says that interstate commerce is affected, isn’t, according to your view, that the end of the analysis?”

“No,” Verrilli said. “In those situations Congress would be moving to create commerce. Here Congress is regulating existing commerce [in the national health-care market].”

At one point, Kennedy said that a scheme permitting the government to order Americans to buy insurance “changes the relationship of the federal government to the people in a very fundamental way.”

Some supporters of the health-care law took heart in Kennedy’s last question of the day. He said he agreed with a point made by the solicitor general that young uninsured individuals hold the power to affect health insurance rates and the costs of providing medical care in a way that doesn’t apply in other industries.

The question is potentially significant because it suggests Kennedy may agree with Verrilli’s position that the health-care mandate and the future application of the Commerce Clause power is limited by the uniqueness of the health insurance industry.


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