Tuesday was a rough day for the Obama administration in oral arguments in the Supreme Court over mandated insurance.

The Illinois Policy Institute comments on What Obama’s Lawyers Couldn’t Answer.

If the government can force you to buy health insurance, what can’t they force you to do or buy?

That was the question posed by a number of Supreme Court justices throughout today’s oral argument on the constitutionality of ObamaCare. And that was the question President Obama’s lawyers couldn’t seem to answer.

That question didn’t seem to bother the four liberal justices, who appeared ready to uphold the law. At one point, Justice Breyer suggested that the government could force you to buy things such as cellphones and burial insurance. The remaining justices, however, appeared highly skeptical of the government’s argument. Justice Kennedy and Chief Justice Roberts, largely believed to be the “swing votes” in this case, pressed the administration’s lawyer hard for any kind of limit to the President’s theory.

Chief Justice Roberts harshly noted that the type of insurance ObamaCare forces people to buy was completely different from the type of health care these people actually use. Justice Kennedy countered the administration’s argument by saying that the government will say that every market is “unique.”

The fact that the Obama administration didn’t have a good answer for these questions could spell doom for the President’s signature legislation. That doesn’t mean the law will ultimately be struck down. After all, the government needs to convince only one of the conservative justices. But today’s hearing illustrated just how uncomfortable they are with a law that, as Justice Kennedy proclaimed, “changes the relationship of the federal government to the individual in a very fundamental way.”

Train Wreck for Obama

The Hill reports Rough day for Obama health law: Kennedy among mandate skeptics

The Obama administration’s health insurance mandate faced severe skepticism Tuesday from conservatives on the Supreme Court during a pivotal morning of oral arguments on the landmark legislation.

Justice Anthony Kennedy, the court’s most consistent swing vote, repeatedly voiced doubts about the mandate’s constitutionality, suggesting he could side with the court’s four staunch conservatives to overturn President Obama’s healthcare law.

“That changes the relationship of the federal government to the individual in a very fundamental way,” Kennedy said.

Jeffrey Toobin, a lawyer and legal analyst who writes about legal topics for The New Yorker called Tuesday a “train wreck for the Obama administration.”

“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,” Toobin said Tuesday on CNN. “I think this law is in grave, grave trouble.”

Supporters of the law had seen Chief Justice John Roberts and Justice Antonin Scalia as possible supporters of the mandate in addition to Kennedy, but the two offered aggressive questions during the two hours of arguments.The debate hinged largely on whether the mandate requires people to enter the market for health insurance or regulates the market for healthcare. Verrilli argued that everyone either uses healthcare or is at risk of unexpectedly ending up in the market for healthcare services. The mandate simply ensures that those services are paid for, he said.

Scalia wasn’t buying it.

“I don’t agree with you that the relevant market here is health care. You’re not regulating health care. You’re regulating insurance,” Scalia said. “It’s the insurance market that you’re addressing and you’re saying that some people who are not in it must be in it.”

Following an exchange between Verrilli and Scalia, Justice Sonia Sotomayor spent a full two minutes outlining the three main elements of the Justice Department’s position, then she asked Verrilli, “Which of these three is your argument? Are all of them your argument?”

Roberts pressed Verrilli to explain where Congress’s power to issue new mandates would stop. The lack of a “limiting principle” has dogged the Justice Department’s case throughout the process, prompting one lower-court judge to question whether Congress could also require citizens to buy broccoli, because a healthy diet would cut down on healthcare costs.

The Supreme Court justices revived the broccoli analogy and ran through several more, asking whether the government could mandate the purchase of cellphones, gym memberships, cars, prescription drugs or burial insurance.

Conservative judges in lower courts have upheld the mandate on the grounds that healthcare is unique, due to the risk of accidents and the nature of its cost-shifting. Although other goods also get more expensive when people don’t buy them, there are few parallels to the requirement to treat uninsured patients.

The mandate is also considered essential to effectively implementing other parts of the healthcare law. Provisions requiring insurance companies to cover sick people, and prohibiting them from charging those patients higher prices, could dramatically raise the price of insurance if not counterbalanced with the mandate.

“That seems to me a self-created problem” that could be solved by not imposing those regulations, Scalia said.

Senator Lee Says 5-4 Ruling Against Individual Mandate

Senator Mike Lee, Republican, Utah Expects 5-4 Ruling Against Individual Mandate

Sen. Mike Lee (R-Utah) predicted Tuesday that the Supreme Court will rule against President Obama’s signature healthcare legislation and declare the individual mandate unconstitutional.

“Based upon the questions from the bench, I am predicting that there’s likely to be a 5-4 ruling in this case. I tend to think it’s a 5-4 ruling holding that the individual mandate is unconstitutional,” said Lee on Fox Business Tuesday.

Lee said that he sensed Kennedy, who is considered the traditional swing vote on the court, appeared “very skeptical” about the Justice Department’s argument in defense of the mandate.

Lee, who clerked for Supreme Court Justice ‪Samuel Alito ‬on the U.S. Court of Appeals for the Third Circuit Court, also noted that today’s hearing was uncharacteristically “lively.”

Interview With Senator Lee

Link if video does not play: Senator Lee on Healthcare

The Illinois Policy Institute asks the correct question “If the government can force you to buy health insurance, what can’t they force you to do or buy?”

Regardless of whether or not one thinks we need national healthcare, legislation ought to pass strict constitutional muster. Obamacare doesn’t, and thus deserves to be flushed down the toilet. Congress can try again.

Mike “Mish” Shedlock
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