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In an “electric” atmosphere, the Supreme Court heard two hours of pointed debate on Tuesday over the core section of President Obama’s health care law. From the justices’ questions, the court appeared closely divided on the constitutional question, according to reporters and commentators.
“Towards the end of the argument the most important question was Justice [Anthony] Kennedy’s. After pressing the government with great questions Kennedy raised the possibility that the plaintiffs were right that the mandate was a unique effort to force people into commerce to subsidize health insurance but the insurance market may be unique enough to justify that unusual treatment. But he didn’t overtly embrace that. It will be close. Very close.”
Some other observers discerned hints of defeat for the Obama administration. “Health Law Seen in Jeopardy after Supreme Court Arguments,” declared a Bloomberg headline. And legal analyst Jeffrey Toobin of CNN said Jeffrey Toobin, CNN’s senior legal analyst, said that based on what he heard, the new law could be in “grave danger.”
At issue on Tuesday, the second of three days in a marathon schedule of oral arguments, was whether Congress exceeded its authority in requiring most Americans to get health insurance or pay a penalty. A sampling of news accounts depicted the four justices in the court’s more liberal bloc as asking questions or making remarks supportive of the law, with “a barrage of skeptical questions coming from four of the court’s more conservative justices,” as a New York Times account put it.
Speculation centered on Chief Justice John Roberts Jr. and Justice Kennedy as possible swing votes.
According to a Washington Post article, Justice Kennedy “suggested that the 2010 Patient Protection and Affordable Care Act invoked a power ‘beyond what our cases allow’ the Congress to wield in regulating interstate commerce. ‘Can you create commerce in order to regulate it?’ he asked.”
The New York Times gave this portrait of the proceedings: “Everything about the argument was outsized. It was, at two hours, twice the usual length. The questioning was, even by the standards of the garrulous current court, unusually intense and pointed. And the atmosphere in the courtroom, which is generally subdued, was electric.”
To view a transcript of Tuesday’s arguments, click here for an NPR-provided link.