Day Two: Too Close To Call On The Mandate


Today was the day followers of the ACA litigation have been awaiting for two years:  The Supreme Court heard historic oral argument on the individual mandate, the heart of the ACA’s market reforms.  The dramatics started early, with chanting demonstrators gathered outside and a who’s who of D.C. politics — from Senate majority leader Mitch McConnell to minority leader Harry Reid to Attorney General Eric Holder — mingling in the courtroom.  But things really got interesting when argument began.  It quickly became clear that the Court’s liberal wing (Justices Ginsburg, Breyer, Sotomayor, and Kagan) believes the mandate is constitutional, and that Justices Scalia and Alito believe it is not.  Justice Thomas is a third reliable vote to strike the law down.  That leaves two votes — Chief Justice Roberts and Justice Kennedy — controlling the outcome.  And while neither one made his position obvious, both had tough questions for the Obama Administration’s lawyer, and Justice Kennedy repeatedly called the individual mandate an “unprecedented” law that “changes the relationship” between the people and the government.  For now, the fate of the individual mandate remains too close to call.

Read more here, and stay tuned for a Q&A at 3 p.m.  Also, I will answer questions during a special AHA members-only Townhall Interactive Webcast at 4 p.m.

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