WASHINGTON, March 27, 2012 (LifeSiteNews.com) – Transcripts from the Supreme Court’s ongoing oral arguments over the Obama administration’s health care law show a sharply divided court that some analysts say could mean the controversial law is in “grave danger.”
At the heart of the controversy is the law’s mandate forcing Americans to purchase health insurance, which opponents have said goes beyond the scope of Congress’ power, and which many believe could unravel the entire law should it be struck down.
The law is being challenged by the attorneys general of 26 U.S. states and the National Federation of Independent Business.
Justice Anthony Kennedy, one of three swing votes proponents hope to win over, said on Tuesday that the mandate “threatens to change the relationship between the government and the individual in a profound way.”
Justice John Roberts also expressed skepticism that the broad power assumed by the government had any clear terminus, and compared the insurance mandate to a rule forcing Americans to buy cell phones in order to respond to emergency situations.
“You don’t know when you’re going to need [emergency services]; you’re not sure that you will. But the same is true for health care,” said Roberts. “So there is a market there. To—in some extent, we all participate in it. So can the government require you to buy a cell phone because that would facilitate responding when you need emergency services?”
Justice Antonin Scalia also appeared critical of the administration’s arguments, shooting down Solicitor General Donald Verrilli’s argument that the mandate was equivalent to previous laws regulating commerce that were unprecedented at the time.
“Oh no, it’s not,” Scalia interjected. “They all involved commerce. There was no doubt that was what regulated was commerce. And here you’re regulating somebody who isn’t covered.”
Politico noted that the conservative judges were open to hearing more about how health insurance difered from other commodities, as individuals without insurance nonetheless affect the insurance market. “Not everybody is going to enter the mortgage market. The government’s position is that almost everybody is going to enter the health care market,” said Justice Roberts.
The marathon of oral arguments will conclude Wednesday with 90 minutes of discussion of whether the health care law can stand if the individual mandate is struck down.
Several commentators concluded that the individual mandate, if not doomed, seems to have a much tougher fight in the high court than previously expected.
CNN senior legal anaylst Jeffrey Toobin said that Tuesday’s hearing showed that the law could be in “grave danger.”
“This was a train wreck for the Obama administration,” Toobin said on CNN. “This law looks like it’s going to be struck down. I’m telling you, all of the predictions, including mine, that the justices would not have a problem with this law were wrong.”
Prominent Supreme Court litigator Tom Goldstein of SCOTUSblog noted that the conservative justices’ questions for the plaintiffs’ lead attorney were “not nearly as pressing” as those directed at the Solicitor General, and that the fate of the mandate will likely rest with Justice Kennedy:
“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.
“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.”
Outside the Supreme Court, demonstrators for and against the measure clashed. At a rally by Tea Party leaders, Rep. Michele Bachmann highlighted the conflict.
“Two years later, this bill has not united our country, it has divided us more than ever. Look around you. We are divided. Not united,” Bachmann said, according to the Huffington Post.