ObamaCare on trial: Is the individual mandate doomed?

The Supreme Court's conservative wing expresses deep skepticism about the cornerstone of the president's health-care overhaul

Protesters gather outside the Supreme Court, where justices heard arguments Tuesday on the constitutionality of the individual mandate, which requires nearly all Americans to obtain health in
(Image credit: Charles E. Shoemaker/Corbis)

Tuesday wasn't a good day for "ObamaCare." In the second day of landmark arguments over President Obama's health care reform law, the Supreme Court focused on the individual mandate, which requires most Americans to obtain health insurance or pay a penalty. The law's defenders say the mandate is vital to health care reform, since it would be impossible to cover the costs of everyone's health insurance unless everyone is forced to enroll. But on Tuesday, the court's conservative justices aggressively went after the mandate, peppering the government's top lawyer, Solicitor General Donald Verrilli, with skeptical questions. The exchanges were so damaging that CNN legal analyst Jeffrey Toobin called the day a "trainwreck for the Obama administration." Does this mean the individual mandate will be struck down?

The individual mandate is in big trouble: Justice Anthony Kennedy, considered the most likely conservative to uphold the mandate, expressed "deep skepticism that the government can force Americans to buy insurance," say Carrie Budoff Brown and Josh Gerstein at Politico. Kennedy said such a law would change the relationship between the government and its citizenry in a "fundamental way." With only the court's four liberals in the Obama administration's corner, Team Obama has to secure at least one conservative vote — and Tuesday's arguments cast real doubt on whether it can get one.

"Conservative justices skeptical of individual mandate"

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Actually, Kennedy might come around: Kennedy started off "displaying a very deep skepticism," says Lyle Denniston at SCOTUSblog. But in the end, he left me with the "impression that he might yet be the mandate's savior." During two hours of arguments, he appeared to be against the mandate in the first hour, and "cautiously in its favor" during the second. The key is whether Verrilli convinced him that the individual mandate is not "the first step in massive over-regulation of private choice." And if Kennedy does decide to uphold it, he may very well take Chief Justice John Roberts and a "majority along with him." Anyone predicting "the demise of the mandate" is "decidedly premature."

"Argument recap: It is Kennedy's call"

It's a mistake to read too much into the arguments: Both supporters and opponents of health care reform should "not attach too much consequence to the tenor of this morning's session, as it could turn out to be very misleading," says Rick Ungar at Forbes. "Asking hard and probing questions" is the Supreme Court's job, and it's common for justices to "take a very contrary or aggressive approach" only to hand down a decision that "goes in a very different direction."

"Early SCOTUS report: Individual mandate may be in big trouble"