The second day of oral arguments before the United States Supreme Court concerning the Patient Protection and Affordable Care Act (the “Act”) addressed the substantive question of whether or not a government mandate requiring Americans to purchase health insurance or face a penalty is constitutional.
Several justices asked pointed questions suggesting that they viewed the mandate unfavorably. Justice Kennedy, who is expected to cast the all-important swing vote in the case, interrupted Solicitor General Donald Verilli to ask whether “[Congress] can create commerce in order to regulate it.” The question cemented opposing counsel’s argument that the Act “represents an unprecedented effort by Congress to compel individuals to enter commerce in order to better regulate commerce.” Additionally, Justice Kennedy told Verilli that the government faced a “heavy burden of justification,” noting that the legislation expands Congress’ power under the Commerce Clause and “chang[es] the relationship of the individual to the government.”
As expected, the questions posed by the remaining justices cut consistently along party lines. The Court’s more conservative wing was more critical of the mandate, while the more liberal justices’ line of questioning was more magnanimous toward the government. The sharply divided questioning leads constitutional scholars to believe that the court will likely vote along ideological lines, with Justice Kennedy holding considerable power as the enigmatic swing voter.
Author(s): Brooke P. Dolara
