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: