To say that Tuesday’s Supreme Court oral arguments on the Affordable Care Act didn’t go well for the Obama Administration would be an understatement.
Two veteran legal correspondents emerged from the hearing, which focused on the individual mandate to compel everyone to buy health insurance, and spoke in dire terms about the law’s prospects to withstand judicial review.
Pete Williams, NBC News’ longtime justice correspondent, said after the hearings: “I think it’s very doubtful that court is going to find the health care law constitutional. I don’t see five votes to find the law constitutional.”
“If I had to predict today, I’d predict the law is in trouble,” he said.
Jeffrey Toobin, CNN’s legal analyst and author of a book about the Supreme Court, said bluntly: “This was a train wreck for the Obama Administration. This law looks like it’s going to be struck down.”
Both reported that Justices Samuel Alito and Antonin Scalia grilled the Solicitor General, Donald Verrilli, on the constitutionality of the individual mandate. Verrilli, the Solicitor General, “did a simply awful job defending the law. He was nervous, he was not well-spoken,” Toobin said.
The big surprise may have been Justice Anthony Kennedy, a conservative often considered the “swing vote” who sometimes sides with the Court’s four liberals. In some ways, Williams and Toobin reported, he was the most vociferous in his questioning.
The question posed by the Justices and Paul Clement, the attorney representing 26 states that challenged the law, was does Congress have the authority under the commerce clause of the Constitution–its power to regulate interstate commerce–to compel Americans to buy insurance?
The government and the four liberal Justices on the Court argued that everybody was in the market for health care whether they bought insurance or not and by not buying insurance they shifted the costs to everyone else. Clement argued that there was a difference between Congress regulating commerce and creating commerce.
Justice Kennedy appeared to jump on that concept, asking where were the limits of Congress’s powers. “This is beyond anything Congress has done before,” he said.”That changes the relationship of the federal government to the individual in a fundamental way.”
This goes right to the heart of conservatives’ objections to the individual mandate, originally a Republican proposal and the centerpiece of former Gov. Mitt Romney’s health care plan in Massachusetts. That became the model for Obamacare, as much as he may deny it.
Conservatives consider it a fundamental assault on individual liberty, and the conservative justices seemed to support that in their questions today.
Ironically, the only conservative Justice who was remotely sympathetic to the government’s case was Chief Justice John Roberts, who challenged both sides. He may vote alongside the liberals to uphold the law, but it really seems unlikely.
Before the hearings, Intrade, the electronic prediction market, said there was a 37.%% chance the Supreme Court would declare the individual mandate unconstitutional by the end of the year. Afterward, those odds jumped to 50%.
You can’t predict Supreme Court decisions by what happens in oral argument. But based on what we’ve seen, it doesn’t look good for Obamacare’s survival.