Is the Supreme Court Skeptical of ObamaCare's Insurance Mandate?

Initial reports from today's Supreme Court arguments suggest there's a reasonable chance the individual mandate to purchase health insurance may be struck down. From The Wall Street Journal:

Supreme Court Justice Anthony Kennedy on Tuesday challenged the Obama administration's arguments for the health-care law, saying the government has a "very heavy burden of justification" for the measure's requirement that people carry health insurance or pay a penalty.

Justice Kennedy, often a swing vote on the high court, said the government must show where the Constitution authorizes Congress to change the relation of individuals to the government.

...Solicitor General Donald Verrilli was defending the law before the justices. He argued that Congress was regulating the health-care market in which people were already participating, rather than breaking new ground by forcing them to buy a product.

Justice Kennedy probed Mr. Verrilli on whether the same reasoning could apply to food. The justice asked what limits, if any, there would be to government powers under his argument.

And The L.A. Times:

The Supreme Court’s conservative justices Tuesday laid into the new requirement that Americans have health insurance  as the court began a much-anticipated second day of arguments on President Obama’s 2010 healthcare law.

Even before the Obama administration’s top lawyer could get three minutes into his defense of the mandate, the justices accused the government of pushing for excessive authority to require Americans to buy anything.

“Are there any limits,” asked Justice Anthony Kennedy, one of three conservative justices who are seen as critical to the fate of the unprecedented insurance mandate.

Chief Justice John G. Roberts, Jr.suggested the government might require Americans to buy cell phones to be ready for emergencies. And Justice Antonin Scalia asked if the government might require Americans to buy broccoli or automobiles.

“If the government can do this, what else can it … do,” Scalia asked?

Check back for more from Reason's Damon Root, who is attending this week's hearings, later today. Here's Root on the first day of arguments:

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  • Auric Demonocles||

    Don't you people get it? The market is unique. Everyone will use health insurance. Not everyone will use food!

  • ||

    Oh, so now they're for limits on government power. Where were the "If you can do this, what can't you do?" arguments when Raich (among many others) was decided?

  • robc||

    I think O'Connor made them.

  • Apatheist ಠ_ರೃ||

    O'Connore, Reinquist and Thomas. One of the many cases where Scalia was a Team Red fuck.

  • Joe M||

    And Justice Thomas is just brooding, as usual.

  • Paul||

    I don't care if he broods, as long as he broods in a "no" direction.

  • Dick Fitzwell||

    Hmmmmm...From the WSJ live blog:

    Justice Sotomayor is the first to jump in with a question for Mr. Clement. She notes that the challengers have conceded that the government could require people to buy insurance “at the point of sale,” meaning when they go, for example, to the emergency room to receive care.

    Who conceded that point?

  • WTF||

    Who conceded that point?

    The voices in her head.

  • ||

    Q. What if they still don't want the insurance at the point of sale?

    A. Children die in the streets! Defenseless children die!

  • Joe M||

    Yeah, that's the stupidest thing I've ever heard. Even the insurance companies should oppose that idea.

  • ||

    huh? So we can only buy insurance when we need it - immediately don't pay for it - and then ???

  • Alack||

    And then receive free healthcare! Obviously.

  • Paul||

    duh. Coverage mandates! Have you guys seen the price of birth control, lately?

  • Rafterman||

    Its a hell of a gambol on Obama's part, but it just may work.

  • Sofa King Screwed||

    Please, don't get my hopes up. Not even a little.

  • ||

    I think all of the writing about how there is "no rational argument for this" is a sign of weakness on the part of supporters. People like Linda Greenhouse are prepping the battlefield for defeat not victory.

  • I have a JD||

    Yep. Laying the foundation for Obama's court-packing plan if SCOTUS scotches DemCare.

  • Charlotte Corday||

    Can't do that without 60 votes in the Senate.

  • ||

    Don't use logic here, Obama is a court packing dictator!!!

  • Obama||

    All in good time, Honey.

  • Just dropping by||

    "He argued that Congress was regulating the health-care market in which people were already participating, rather than breaking new ground by forcing them to buy a product."

    So the government's argument is that it can obligate you to a buy a product in any existing market, but it can't obligate you to buy products that haven't been invented yet? The limits they're willing to accept are truly breathtaking.

  • ||

    If it can make you buy an already-existing product, why can't it make you buy a product that hasn't been invented yet?

    What is this spurious existence/non-existence distinction?

  • ||

    For the record, I don't think there's a snowball's chance in hell that this gets overturned. I also think that if this somehow gets overturned, it assures Obama winning a second term.

  • Cytotoxic||

    Why and how?

  • ||

    Why it won't get overturned: Because we've seen this dance time and time again. The conservative justices complain and talk about unconstitutionality, but in the end Thomas and a couple of others are the only votes against.

    Why it assures Obama a second term: Because the base is tired and apathetic right now and not big on coming back out to vote in November. But once the "See? The conservatives really do hate the poor and want to kill grandma and grandpa!" arguments start coming out, once the "We need Obama as President so he can pack the Supreme Court so this won't happen again!" arguments coming out, he'll win, and he'll win big, and it'll probably drag the House towards Team Blue as well.

  • I have a JD||

    I'll take option B.

  • ||

    "Why it assures Obama a second term"

    I agree and I think this is what Obama wants, hence the half-assed attempt at defending it. I don't know if they went so far as to instruct the legal team to try to lose but they probably picked the legal team that they thought was likely to fumble it.

  • ||

    I'm told by people pretty close to the lower court workup that the SG definitely had the B team on those.

    And I am Not Impressed by what I'm hearing about oral argument.

  • ||

    More on the "Why it assures Obama a second term if overturned", the media is already trotting out the "Look at the terrible things that happen if it's overturned!" stories. This is going to be exploited heavily by Team Blue.

    http://www.cnn.com/2012/03/27/.....?hpt=hp_c1

  • ||

    I hope there are dead babies and crying mommies in this story.

  • X||

    yep, that ought to get the 36% who support it to the polls. wait, what?

  • Charlotte Corday||

    If it is overturned, it takes away some conservative intensity and takes liberal intensity to 11. I think it being overturned helps his election chances. That said, it is still worth it to have it killed.

  • adam||

    I think the best outcome is that Roberts votes with the liberals to uphold it and uses his power to assign the writing of opinions to assign himself. Then he writes a narrow opinion that lays some groundwork for future attacks. Dems can't use that to rally the base. Reps are emboldened to repeal the law politically and their supporters are fired up by the ruling come November.

  • ||

    I also think that if this somehow gets overturned, it assures Obama winning a second term.

    So what?
    They won't be able to do single payer. So I don't care. Obama isn't going to be much worse than Romney or Santorum as POTUS.

    I'm far more worried about setting the command-economy precedent that upholding the mandate would create.

    Allowing the government to impose economic dicates opens the door to, well, dictatorship.

  • H man||

    Isn't that hyperbole. I mean it's not like the president has the power to lock you up as a terroist just on his say so.

    Oh snap...

  • ||

    Who is least likely to lock you up as a terrorist? Obama, Romney, or Santorum?

    I can't fucking tell.

  • robc||

    This. Im okay with a 2nd Obama term if obamacare dies.

    He wont be able to pass anything close again.

  • Anna Graham||

    I look forward to watching Obama, Pelosi and Reid eat a shit pie.

  • Pip||

    Fucking joke handles.

  • Romulus Augustus||

    Arlen "Single Bullet" Specter said on Fox this morning that the law in constitutional and is hoping that "the four ideologues" on the court don't win. Sure, and the four liberal justices are fair and open-minded legal scholars, not idealogues?

  • H man||

    I hope the four ideologues don't win either. Wait which ones are we talking about?

  • Paul||

    ...Solicitor General Donald Verrilli was defending the law before the justices. He argued that Congress was regulating the health-care market in which people were already participating, rather than breaking new ground by forcing them to buy a product.

    Help me out here. This 'market' in which I'm 'participating'. Define "participating" for me.

    Example, if I buy a TV in March of 2007, come April of 2012, am I "participating" in the home electronics market, or was I only participating in said market at the moment of sale?

  • Charlotte Corday||

    By the SG's logic we are all simultaneously participating in every single market in the world. Because we are either buying something and directly participating in it, or we are not buying something and participating in a market by choosing not to directly participating in it.

    Right now, by choosing not to buy rhino horn dust, you are participating in the illegal endangered species trade. You monster.

  • T||

    So, we're all particpating in the drug trade. SWAT raids for everyone!

  • Charlotte Corday||

    Your failure to purchase cocaine, makes you a participant in the drug trade.

  • Obama||

    So, we're all particpating in the drug trade. SWAT raids for everyone!

    Get with the times, it's drone strikes for everyone!

  • COMMERCE CLAUSE||

    SSSMMMMAAASSSHHHH!!!!!

  • stuartl||

    "Chief Justice John G. Roberts, Jr.suggested the government might require Americans to buy cell phones to be ready for emergencies"

    Cell phones no, embedded GPS yes.

  • ||

    We'll have to buy the bullets for our own execution squad. [bucause the government if fucking broke - that's why]
    Why aren't you participating in the bullet market?

  • Kwanzaa Cake||

    Almost everyone participates in the telecommunications market; requiring the purchase of cell phones would simply regulate the manner in which that communication takes place. Ha, this "logic" works wonders!

  • Sevo||

    And if you don't buy 4 or 5 cell phones, you're 'artificially' depressing demand!

  • robc||

    And you cant just buy a cheap emergency cell phone either, you must be a full plan smart phone.

  • ||

    From the WSJ Live Blog, regarding Kennedy:
    "He said the insurance mandate changes the relationship between the federal government and individual citizens “in a fundamental way.”"

  • Paul||

    "He said the insurance mandate changes the relationship between the federal government and individual citizens “in a fundamental way.”"

    Isn't that the entire point of Obamacare?

  • ||

    "He said the insurance mandate changes the relationship between the federal government and individual citizens “in a fundamental way.”"

    He's wrong about that. That relationship got changed back in FDR's day. This is just the bill coming due.

    But I'm not complaining that he is finally waking up to the inevitable end point of the forces set in motion by FDR. And doesn't seem to like it.

  • ||

    It would be awesome if this case turned Kennedy into a libertarian, wouldn't it?

    If he's capable of seeing the danger of allowing the government to pass economic dictates, he might start questioning things like eminent domain.

  • shrike||

    Are you thinking what we're thinking?

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