About Yesterday’s Supreme Court Argument

It was a pivotal day for the Obama health care law, the Affordable Care Act. Who came out on top?

Adam Freedman
March 28, 2012

Yesterday – March 27 – was the pivotal day for the Obama health care law, the Affordable Care Act.  The Supreme Court heard argument on the constitutionality of the “individual mandate,” that is, the requirement that all Americans obtain health insurance.  Immediately after the argument, commentators proclaimed that it had been a bad day for the government.  Jeffrey Toobin of The New Yorker/CNN, for example, declared the case a “train wreck” for the administration.  Why?  For one thing, Justice Anthony Kennedy – the presumed swing vote on the Court – asked a lot of questions indicating a deep skepticism of the government’s defense of the individual mandate.   In addition, the majority of justices seemed to be unpersuaded by the government’s argument that the individual mandate is an exercise of the government’s taxing power under Article I of the Constitution (because the mandate is enforced via tax penalties).  That left the government with only one argument: that the mandate is an exercise of Congress’s power to regulate interstate commerce.  But all is not over for the government.  Under existing precedents, the Constitution’s commerce clause allows Congress to regulate activities that “substantially affect” interstate commerce – a fact that the government emphasized.  And towards the end of the argument, even Justice Kennedy seemed to show some sympathy for the government.  At the end of the day, the fate of the health care law remains up in the air.

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