Individual Mandate in Trouble

After two years of debate, the central question of the constitutionality of the individual mandate in the Obama health law went before the U.S. Supreme Court on Tuesday, and what emerged was the distinct possibility that a majority of justices could rule against the mandate.

Legal experts have been wondering for months what Justice Anthony Kennedy might do, as he is considered the “swing” justice on the Court between a bloc of four more liberal justices and four more conservative ones.

Just a few minutes into Tuesday’s arguments, Kennedy made clear that he has deep reservations about the individual mandate.

“Can you create commerce in order to regulate it?” Kennedy asked the Solicitor General, who as the lead lawyer for the Obama Administration, did not have the best of days arguing before the High Court.

“Do you not have a heavy burden to show authorization under the Constitution?” Kennedy asked a little later in the arguments, as he raised concerns that if Congress is allowed to move forward with the individual mandate, lawmakers will be able to do just about anything.

“Can you identify for us some limits on the Commerce Clause?” Kennedy asked.

Kennedy’s questions to Solicitor General Donald Verrilli were backed up by three other justices, as Samuel Alito, Antonin Scalia and Chief Justice John Roberts all took issue with the individual mandate.

Justice Clarence Thomas again asked no questions during today’s session.

The more liberal side of the court did all they could to defend the law, though several of the justices had to spend time during the first hour helping the Solicitor General with his own arguments.

Here is a video review of Tuesday’s session after I left the U.S. Supreme Court.