The general take I’m hearing from people inside the courtroom today is that Solicitor General Donald Verrilli blew it during arguments on the health care law’s individual mandate. I wasn’t in the courtroom, so I can only go by other people’s takes:
In the first hour of a two-hour hearing, the court’s liberal justices were largely silent, but three of its four most conservative members expressed reservations that upholding the mandate could significantly alter the powers of the federal government. So did Justice Anthony Kennedy, often the court’s swing vote.
Kennedy said Tuesday that the law “changes the relationship of the federal government to the individual in a very fundamental way,” and he pressed the Obama administration’s lawyer, Solicitor General Donald Verrilli, on why the insurance requirement wouldn’t leave Congress with nearly limitless authority.
“When you are changing the relationship of the individual to the government, do you not have a unique obligation to show authorization under the Constitution?” he asked.
The court’s conservatives peppered Verrilli with questions about whether Congress could also force Americans to buy broccoli, burial insurance or cellular phones as part of commercial regulations down the road. Verrilli said lawmakers couldn’t do that, but the justices seemed unconvinced.
“Once you’re into interstate commerce and can regulate it, pretty much all bets are off,” Chief Justice John Roberts said. Added Justice Antonin Scalia: “What is left? If the government can do this, what else can it not do?”
I don’t think we should totally extrapolate the arguments in the hearing to the final outcome. But I don’t see a lot of daylight here from Kennedy, Roberts or Scalia, thought to be the three most likely to side with the less conservative Justices and uphold the mandate.
In the second hour, however, Kennedy and Roberts, at least, questioned the argument from the plaintiffs, representing the 26 states, almost as harshly. Kennedy did say that the uninsured were “an actuarial reality” because of their relationship to the overall market, in terms of premiums. Roberts also seemed to agree that the health care market is unique because of this reality, and because eventually, everyone requires health care.
Lyle Denniston at SCOTUSBlog says it’s Kennedy’s call:
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., along with him. But if he does not, the mandate is gone. That is where Tuesday’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior.
If the vote had been taken after Solicitor General Donald B. Verrilli, Jr., stepped back from the lectern after the first 56 minutes, and the audience stood up for a mid-argument stretch, the chances were that the most significant feature of the Affordable Care Act would have perished in Kennedy’s concern that it just might alter the fundamental relationship between the American people and their government. But after two arguments by lawyers for the challengers — forceful and creative though they were — at least doubt had set in. and expecting the demise of the mandate seemed decidedly premature.
So Verrilli did a terrible job, but that might not matter. But for two years now, most observers have suspected that this would come down to Anthony Kennedy. That’s probably accurate.
UPDATE: Jeffrey Toobin, at least, thinks the law will get struck down, or at least the mandate.
UPDATE II: TPM has a link to the transcript for today’s hearing.