Health reform on trial: Day 2 of Supreme Court hearings

Most justices appear skeptical of individual mandate

Topics: Health Policy, Market Trends, Strategy

March 27, 2012

This story is in progress. Last update 6:40 p.m. ET

Dan Diamond, Managing Editor  

Legal watchers' consensus: The Affordable Care Act just had a bad day in court.

The second day of oral arguments in the Supreme Court case against the ACA focused on its individual mandate—specifically, if it's a federal overreach.

And the government's argument met with some resistance, including from Chief Justice John Roberts and Justice Anthony Kennedy, the expected swing votes in the case—while the conservative argument, led by lawyer Paul Clement, faced notably less criticism.

Conservative justices levy sharp questions
Does Congress have power to mandate that U.S. residents purchase health coverage? Conservative members of the court were generally skeptical, as Justices Samuel Alito and Antonin Scalia questioned U.S. Solicitor General Donald Verrilli "over and over again" about how far the government can go to force U.S. residents to purchase goods, the Wall Street Journal's "Washington Wire" reports.

Seeking to bolster Verrilli's argument, the court's liberal justices weighed in numerous times to bolster his case that the government is empowered to compel citizens to purchase coverage. For example, Justice Steven Breyer rebutted a challenge to Verrilli from Scalia suggesting that the health insurance market was akin to the funeral insurance market.

Verrilli's argument often sparked fierce debate among the justices. For example, when Justice Ruth Bader Ginsburg commented that "the people who don’t participate in [the insurance] market are making it much more expensive for those that do," Scalia interjected that the same could be said "about buying a car...If people don’t buy a car, the price [that car buyers] will pay will be more," the Post reports.

  • A Daily Briefing photo gallery of the scene outside the Supreme Court.

Neither Roberts nor Kennedy tip their hand
But the most closely watched justices remain Justice Anthony Kennedy and Chief Justice John Roberts. With the court split—the three most conservative justices are widely expected to rule against the mandate, while the four most liberal justices will likely vote to uphold—both men are seen as pivotal swing votes.

And both expressed deep concerns about the government's burden to justify the mandate. Near the end of Verrilli's time, Kennedy commented that the insurance mandate changes the relationship between the federal government and individual citizens "in a fundamental way."

However, both Kennedy and Roberts offered comments later in the hearing that "somewhat tempered" their earlier concerns, the Journal reports. For example, Kennedy suggested that young, healthy Americans who lack insurance "can and must be measured," he said.

Kennedy appeared focused on whether the government believes its ACA defense, which relies on Congress's use of Commerce Clause powers, has a "limiting principle." As Sarah Kliff of the Post's "WonkBlog" notes, when courts review new efforts to expand Congress’s constitutional authority, they historically look "to see the government articulate a clear limit to those legal jargon, a "limiting principle."

Lyle Denniston of SCOTUSblog further suggested that if Kennedy can "can locate a limiting principle in the federal government’s defense...or can think of one on his own, the mandate may well survive."

Criticism of ACA as 'unprecedented' law
Meanwhile, court watchers concluded that Clement, the former solicitor general who is representing the 26 states that are challenging the mandate, presented a very strong case that the mandate presents "an unprecedented effort" to force Americans into commerce.

He also argued against the notion that every taxpayer participates in the health care market, noting that some Americans fail to purchase insurance or consume health care services, the Journal reports. 

Clement was followed by Michael Carvin, who represented National Federation of Independent Business and several private plaintiffs and echoed Clement's case.

Up next
The high court on Wednesday will conclude the oral arguments on the case. The justices will consider the issue of severability—whether the law can stand if they determine the individual mandate is unconstitutional—and whether the Medicaid expansion in the overhaul represents an unlawful coercion of the states by the federal government.

Meanwhile, court watchers are placing bets on the outcome—literally. Users on on Monday had pegged the odds that the mandate would be struck down at about 34%. But the odds of the mandate being found unconstitutional spiked to roughly 50% as news trickled out about the justices' arguments (Aizenman/Barnes, Washington Post, 3/27; Kliff, "WonkBlog," Washington Post, 3/27; Denniston,, 3/27; Hanrahan/Radnofsky, "Washington Wire," Wall Street Journal, 3/27; Supreme Court transcript, 3/27).

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