Obamacare Mandate in Deep Trouble

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.

Keith Koffler


Award winning journalist Keith Koffler has 16 years of experience covering Washington. As a reporter for CongressDaily, National Journal magazine, and Roll Call, Keith wrote primarily from the White House, covering three presidents and learning as few have the intricacies of the West Wing and the behavior and motivations of its occupants. While mainly stationed at the White House, he also extensively covered Congress and Washington’s lobbyists. Keith has also written for a variety of other publications, including Politico, The Daily Caller, and The London Observer. He currently writes regular opinion columns for Politico. He blogs at whitehousedossier.com.

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  • Should Justice Kennedy fail to use his intellect (as he is often wont to do), and vote to quash this Obamination, it will fly directly in the face of the supreme illogic he used to support his vote for abortion … that each individual has the right to define the meaning of life.  Won’t this prove a pretty conundrum?

  • mary_love

    The birth control pill (as used for contraception) is UNhealthy for women since it suppresses the natural function of fertility, which is not a disease, I repeat fertility is not a disease, it is natural to human reproductive health. Pregnancy (the natural healthy response to sexual relations) is not a disease either and ought not to be treated as one. On the other hand, the pill has many bad side effects including blood clots, possible stroke and increases the risk of breast, cervix, and liver cancer. The same chemicals were prescribed in much smaller doses for women experiencing complications from menopause, now doctors are recommended not to prescribe them because of the connection to breast cancer, yet we accept the use at much higher levels to teens and young adults. why? The pill is also recognized by the drug manufacturers as an abortifacient. I always understood “health-care” as being primarily the treatment and cure of diseases and injuries, yet the diabetic still has to pay the co-pays and deductibles, the man with a broken arm cannot rely on a gov’t mandate for absolutely free care. BC is not expensive.


  • pnyikos

     Alas, it happened once already, and the case does not inspire confidence: Kennedy sided with the liberals on the radical extension of eminent domain to include forcing a person to sell her house so that a private company could build on  the property.

    The other swing vote at the time, Sandra Day O’Connor, had some very strong words in opposition to this extension, but at the time there were not enough conservative justices to defeat this extension.

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  • It isn’t over until the fat lady sings.  As long as Obama is in office then abortion will be promoted and Planned Parenthood will have a president that will fight for them.  I sure hope and pray the Supreme Court throws out ObamaCare but if there is a will for this president there is a way.  He seems to compromise or talk the talk with so many issues but with Abortion he is straight forward and to the point in being a stanch advocate of the culture of death. 

  • Dillmunsell