The Supreme Court heard a second day of arguments for and against the Affordable Care Act and the law faced heavy scrutiny. The decision could come down to one swing vote.
The U.S. Supreme Court began hearing arguments to decide the fate of President Barack Obama’s health care law. And while the justices will be hearing six hours of arguments for three days, they won’t rule on the case until late June, just five months before the presidential election.
The first day focused on whether or not the law can be challenged before they have to pay the penalty, which wouldn’t happen until 2015. If the justices ruled that the law couldn’t be challenged, then they would have to wait three years to settle the matter.
However, the justices, and all parties in the case, agreed that the Supreme Court could move forward and hear the arguments on the individual mandate — the heart of the matter.
On the second day, the arguments focused on whether or not Congress was even authorized to enact the individual mandate, which requires people buy health insurance or face a penalty.
The justices seemed closely divided, which might be expected. Five of the justices were appointed by Republican presidents, while four were appointed by Democrats, and that's how they seem to be split.
According to , there are two justices who could join the four liberal justices in upholding the law — Chief Justice John Roberts and Justice Anthony Kennedy. Kennedy is often the swing vote for cases where the liberals are in the majority. Roberts, however, often defers to Congress in rulings.
Back row (left to right): Sonia Sotomayor, Stephen G. Breyer, Samuel A. Alito and Elena Kagan.
Front row (left to right): Clarence Thomas, Antonin Scalia, Chief Justice John G. Roberts, Anthony Kennedy and Ruth Bader-Ginsberg.
The swing votes asked tough questions to both sides of the case and seem mostly concerned that they would not be giving Congress new powers over Americans’ lives if they passed the health reform law.
At one point, Kennedy asked Solicitor General Donald Verrilli, “Can you create commerce in order to regulate it?” He also said that the government faces a heavy burden of justification.
According to the court transcript:
JUSTICE KENNEDY: Well, then your question is whether or not there are any limits on the Commerce Clause. Can you identify for us some limits on the Commerce Clause?
GENERAL VERRILLI: Yes. The — the rationale purely under the Commerce Clause that we're advocating here would not justify forced purchases of commodities for the purpose of stimulating demand. We — the — it would not justify purchases of insurance for the purposes — in situations in which insurance doesn't serve as the method of payment for service -
JUSTICE KENNEDY: But why not? If Congress — if Congress says that the interstate commerce is affected, isn't, according to your view, that the end of the analysis.
GENERAL VERRILLI: No. The, the — we think that in a — when — the difference between those situations and this situation is that in those situations, Your Honor, Congress would be moving to create commerce. Here Congress is regulating existing commerce, economic activity that is already going on, people's participation in the health care market, and is regulating to deal with existing effects of existing commerce.
Paul Clement, arguing against the Affordable Care Act, faced equally heavy questioning from the liberal justices and Kennedy, according to the transcript.
MR. CLEMENT: Well, Justice Kagan, once again, it depends on which market we're talking about. If we're talking about the health care insurance market -
JUSTICE KAGAN: Well, we are talking about the health insurance market, which is designed to access the health care market.
MR. CLEMENT: And with respect to the health insurance market that's designed to have payment in the health care market, everybody is not in the market. And that's the premise of the statute, and that's the problem Congress is trying to solve.
And if it tried to solve it through incentives, we wouldn't be here; but, it's trying to solve it in a way that nobody has ever tried to solve an economic problem before, which is saying, you know, it would be so much more efficient if you were just in this market -
JUSTICE KENNEDY: But they are in the market in the sense that they are creating a risk that the market must account for.
Curious howpeople think the health care law is standing up to the scrutiny? It’s not in any way an official prediction, but health care stocks took a bit of a tumble when Verrilli faced heavy scrutiny during the arguments, according to .
Tomorrow the arguments finish up.