The Obamacare health insurance mandate appears to be teetering on the edge of being struck down by the Supreme Court, as the only potential swing justices – Anthony Kennedy and Chief Justice John Roberts – expressed deep skepticism that the government’s power to compel commerce could be limited once it can force you to purchase insurance.
Kennedy appeared deeply skeptical until the end, when he gave proponents of the mandate some hope by suggesting health care may be a unique case.
Here’s a concise analysis by Lyle Denniston, author of SCOTUSblog:
If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive. If he does, he may take Chief Justice John G. Roberts, Jr., and a majority along with him. But if he does not, the mandate is gone.
But take a look at [this assessment by] legal analyst Jeffrey Toobin on CNN.
Various publications picked up on the problem for Obamacare as well.
From the Washington Post:
Justice Anthony M. Kennedy, traditionally the justice most likely to side with the court’s liberals, suggested that the 2010 Patient Protection and Affordable Care Act invoked a power “beyond what our cases allow” the Congress to wield in regulating interstate commerce.
From the Wall Street Journal:
The Supreme Court’s five conservative justices on Tuesday sharply challenged the Obama administration’s arguments for the health-care law, with Justice Anthony Kennedy saying the government has a “very heavy burden of justification” for the law’s requirement that people carry health insurance or pay a penalty.
Chief Justice John Roberts said that if the court approved of the mandate, it may be hard to set limits.
“All bets are off,” Chief Justice Roberts said.
Justice Kennedy said the mandate would change the relationship between the government and individuals in a “fundamental way,” showing skepticism toward Mr. Verrilli’s argument that the mandate follows Congress’s well-established authority under the Constitution’s Commerce Clause.
But Kennedy also had this to say, according to this quote noted by Politico.
“And the government tells us that’s because the insurance market is unique. And in the next case, it’ll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in this case.”
This thing has come a long way from dismissive assurances by Democratic leaders like Nancy Pelosi that legal challenges to the law were ridiculous. Not anymore.