After today’s oral arguments, the consensus among Supreme Court watchers is that the individual mandate is in trouble.
CNN’s legal analyst Jeffrey Toobin called the arguments “a train wreck for the Obama administration.” “This law looks like it’s going to be struck down,” Toobin said. “I’m telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong.”
Jamie Dupree, reporter for Cox Radio, tweeted, “One thing was clear, the Solicitor General [Donald B. Verrilli Jr.] (arguing for the Obama Administration) had a bad day in court.” Justice Kennedy asked him the seemingly skeptical question, “Can you create commerce in order to regulate it?”
“Essentially, the Solicitor General’s performance was so abysmal that it fell to the [Democratic] appointees to make his argument for him,” says Adam Serwer, reporter for Mother Jones.
Dupree adds, however, that “Kennedy did say he thought people who don’t buy health insurance do impact the health insurance market.” He concludes, “While it would be premature to say there is a 5-4 majority against the mandate, it clearly is in legal trouble.”
The Los Angeles Times reports one key statement Kennedy made about the mandate: “That changes the relationship of the individual to the federal government.”
Lyle Denniston, reporter for SCOTUSblog, summed up: “It is Kennedy’s call.” “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,” Denniston wrote. “If he does, he may take Chief Justice John G. Roberts, Jr., along with him. But if he does not, the mandate is gone.”