Quick Take — Constitutionality Of Mandate Too Close To Call


The Supreme Court has just adjourned after two hours of arguments on whether the Affordable Care Act’s individual mandate is constitutitional.  Stay tuned for a full update around 2 p.m. and a Q&A at 3 p.m.  But for now, here are quick highlights from Dom at the Court:

  • Judging from the questions at oral argument–which, again, is not an exact predictor of how the Justices will eventually come out–whether the Court will strike down the mandate is too close to call.
  • The Court’s four liberal justices, Breyer, Kagan, Ginsburg, and Sotomayor, seem squarely in favor of upholding the mandate.
  • Two of the Court’s conservative justices, Scalia and Alito, seem like firm votes to strike the mandate down.  And although Justice Thomas did not ask any questions at oral argument (as is his practice), it seems likely that he will come out the same way.
  • The case, in the end, comes down to how Chief Justice Roberts and Justice Kennedy vote.  Both had tough questions for Solicitor General Donald Verrilli.  And Justice Kennedy, widely regarded as the key swing vote, repeatedly called the mandate “unique” and said it goes beyond what was allowed in previous cases.  But both Chief Justice Roberts and Justice Kennedy challenged plaintiffs’ counsel, with Roberts suggesting that he agreed with the Government that everyone is already participating in the health care market.

Stay tuned for a full post by 2 p.m.  And please join us for a Q&A on this site from 3 p.m. to 4 p.m.  Dom will start a new post just before 3 p.m.; you can ask your questions in the comments, and he’ll do his best to answer them.

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