President Obama's national health care law is in trouble. In two hours of oral arguments, justices of the U.S. Supreme Court seemed extremely skeptical that the law's key mandate forcing individuals to purchase health insurance was a valid exercise of constitutional power and expressed fears that upholding it would give Congress unprececdented and unlimited power.
Justice Anthony Kennedy, long seen as the swing vote in the case, repeatedly said that the mandate was unprecedented and that the government had a "heavy burden" to justify it. He said that it changed the relationship between the individual and the government in a "fundamental" way.
Also, one of the key arguments made by challengers in the case, is that earlier rulings of the Commerce Clause don't apply here because the mandate forces people to enter the stream of commerce. On this point, Kennedy asked Obama's solicitor general Donald Verrilli, "can you create commerce in order to regulate it?"
Justice Antonin Scalia, who some argued would be handcuffed by his prior Commerce Clause ruling, removed any doubt that he was a vote to strike down the mandate, agressively questioning Verrilli, and scolding him by saying that prior court cases cited by the government to justify the mandate all involved commerce.
Chief Justice John Roberts, too, expressed concerns that if the mandate were upheld, there would be no way to impose limits on government power, saying "all bets are off." He also attacked the key argument of the government, which is that health insurance is unique in that everybody is a participant in it. Roberts argued that the problem is that the mandate doesn't just force people to pay for emergency care that they may one day need, but forces them to purchase policies that cover things that they don't want -- including coverage for things like substance abuse and maternity care.
Justice Sam Alito said he doesn't see a difference between forcing people to purchase health insurance and a requirement that they buy burial insurance because everybody needs to be buried. He made the point that the mandate isn't about recouping emergency room costs, but about bringing down premiums for people with pre-existing conditions by forcing them to enter the market. Citing Congressional Budget Office figures, Alito noted that those required to purchase health insurance would be paying a lot more for premiums than they'd need in medical care. He described it as a "subsidy" to the insurance industry.
Though it looked as though, coupled with Justice Clarence Thomas, there were five possible votes to overturn the health care law, a few caveats apply. One general one is that you can't always tell from justices' questions they where they might rule. Another one is that in a few cases, Kennedy and Roberts also posed skeptical questions to opponents of the law.
Roberts noted the government's argument that everybody is effectively already in the health care market. Kennedy noted that even somebody who was sitting at home without insurance still had some sort of actuarial risk. At one point, Kennedy also suggested that the justices had to weigh whether courts had to be deferential to Congress as to the means by which they can regulate.
The law's opponents -- 26 states led by Florida and the National Federation of Independent Business -- were very well represented by Paul Clement and Mike Carvin. Carvin argued quite effectively that the government wasn't merely forcing people to purchase catastrophic care, but to purchase a wide-range of insurance policy.
As expected, the four liberal justices on the court (Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor) all sounded like definite votes to uphold the law, at least on Commerce Clause grounds. In an indication of how poorly Obama's solicitor general was at arguing in favor of the law, the liberal justices had to suggest defenses of the law on his behalf.
The Supreme Court likely won't rule until June, but it was a very good day in court for opponents of the law.