Supreme Court Peppers Attorneys With tough questions over ObamaCare’s Individual Mandate

By Dave Andrusko

The U.S. Supreme Court. Seated, from left, are Clarence Thomas, Antonin Scalia, Chief Justice John G. Roberts Jr., Anthony M. Kennedy and Ruth Bader Ginsburg. Standing, from left, are Sonia Sotomayor, Stephen G. Breyer, Samuel A. Alito, Jr., and Elena Kagan.

By the time the Supreme Court finished day two of oral arguments over the constitutionality of ObamaCare, the only easy conclusion is that the justices asked the lawyers representing the plaintiffs—attorneys general of 26 states and a private business group—and the defendant—the Obama Administration–genuinely tough questions.

With blogging now a standard way of covering breaking news, predictions about which way various justices were leaning varied  from moment to moment over the two hours of back and forth. As is often, Justice Anthony Kennedy is seen as the swing justice, although the positions of other conservative justices was more in doubt than the liberal members whose support for ObamaCare’s “individual mandate” seemed assured.

Monday’s questioning was arcane—whether there was a 19th century law that would mandate deferring a decision until 2015. The early consensus from the justices responses was that they would not allow that to get in the way of making a decision, likely this June.

Today’s subject was the crux—the “minimum coverage provision” (the  individual mandate) that virtually all Americans have health insurance by 2014 or pay a penalty. And at the heart of that requirement was a question that several Justices asked repeatedly: based on the underlying logic, is there any limitation to what the government could require of citizens?

In his exchange with Solicitor General Donald Verilli, Justice Kennedy said,  “Here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act — and that changes the relationship of the Federal Government to the individual in the very fundamental way.” He pressed the Obama administration’s lawyer, to explain why and how Congress’s authority under the commerce clause could be limited.

“Government is supposed to be a government of limited powers,” added Justice Antonin Scalia. “What is left if the government can do this? What can it not do?”

Chief Justice John G. Roberts Jr. asked “if the government could require everyone to buy cellphones, since that would facilitate the government’s system for providing fire and ambulance services in emergencies,” according to the Washington Post.

To this question and others of a similar nature Verrilli repeatedly said the health-care market was “unique,” because virtually everyone will need health care services and no one can predict what services they will need and when.

On Wednesday the court will address the “severability” issue. If the mandate is declared unconstitutional can this one provision be “severed”  so the rest of the law can stand? The same day the justices will consider ObamaCare’s expansion of the Medicaid program (which is jointly funded by the states and the federal government).

ObamaCare has never garnered the support of the American public, as measured by any public opinion poll. A CBS News and the New York Times poll of 986 adults, published just hours before the justices heard arguments on Monday on  the “Affordable Care Act,”  showed that only 36% supported ObamaCare either somewhat or strongly. By contrast 47% of Americans disapprove including 30% who strongly disapprove in the poll, conducted March 21-25.

Republican presidential candidates are uniformly opposed to ObamaCare and have called for its repeal. While the Court could either decide it is premature to decide the case at all (see Monday’s debate) or take longer than usual to come to a decision, the widespread anticipation is it will come down this summer.

The three cases are National Federation of Independent Business v. Sebelius; U.S. Department of Health and Human Services v. Florida; and Florida v. Department of Health and Human Services.

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