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Updated: 3:42 p.m.
The Supreme Court’s conservative bloc and swing vote Justice Anthony Kennedy expressed deep skepticism today about the individual mandate at the heart of President Barack Obama’s health care overhaul, raising the hopes of top Republicans that they will vote to overturn it.
The questioning from Kennedy in particular cheered the GOP and had Democrats nervously trying to comfort themselves that the questions a justice asks are not necessarily related to how a justice will ultimately rule.
Early on Kennedy challenged Solicitor General Donald Verrilli Jr., who was arguing for the Obama administration, over whether the mandate represented an unprecedented use of federal power.
“Assume for a moment this is unprecedented,” Kennedy said, regarding the requirement that individuals take an affirmative action to buy a product.
“Do you not have a heavy burden to show authorization under the Constitution?” he asked.
He later added, “The question is: Are there any limits on the Commerce Clause?”
Kennedy seemed troubled by requiring people to affirmatively buy a product, noting that typically under the law, citizens are not required to take an action — even to rescue a blind person about to be struck by a car. Requiring people to take an action “changes the relationship of the federal government to the individual in a very fundamental way,” he said.
Verrilli said that there is ample authorization in the Constitution, both under the Commerce Clause and under the government’s taxing powers. And he noted the unique nature of the health care argument — that all or nearly all people almost inevitably procure health care services.
Justice Antonin Scalia scoffed at that argument. He posited that everybody is in the market for food, therefore you can make everybody buy broccoli, adding later that the government could force people to buy cars to lower the cost for everyone else.
Justice Ruth Bader Ginsburg rebutted Scalia, however, in one of the many exchanges between the liberal and conservative justices. “Unlike food or any other market ... when disaster strikes, you may not have the money” to pay for health care, she said.
Verrilli said the Commerce Clause does have limits and that the government could not require people to buy a commodity to stimulate demand. But he said that everyone is effectively already in the health care market because they will eventually need care.
Chief Justice John Roberts probed both sides of the debate. He asked Verrilli: “Can the government force you to buy a cell phone” to make it easier for rescue services to find you?
Justice Samuel Alito asked whether the government could force everyone to buy burial insurance because everyone dies.
Verrilli said that health insurance was different because of the massive cost-shifting that takes place when uninsured people use the health care system and are unable to pay for it.