The Bucknuts Hot Spot

Looks like Kennedy from his questioning is going to join the other 4 conservative justices and kill Obamacare.
C&P

By Jack Torry
The Columbus DispatchTuesday March 27, 2012 1:16 PM

WASHINGTON — Four of the Supreme Court’s conservative justices today sharply questioned a Justice Department attorney about the new health law, signaling their skepticism about the government’s claim that it can compel Americans to buy health insurance.

In the second of three days of oral arguments on the constitutionality of the 2010 health law, the justices delved into the heart of the measure — a mandate that Americans buy a private health insurance policy or face a government fine.

U.S. Solicitor General Donald Verrilli, who is defending the signature domestic achievement of President Barack Obama, argued that the Constitution grants Congress the power to regulate interstate commerce, which means lawmakers can regulate the insurance market.

Verrilli said that because a large number of the 46 million Americans without insurance receive care at emergency rooms, the hospitals shift those costs to insured Americans. He cited studies that the cost of uncompensated care adds as much as $1,000 to the price of a typical insurance policy.

But Verrilli came under a withering attack from Chief Justice John Roberts, and Justices Antonin Scalia, Anthony Kennedy, and Samuel Alito who expressed fears that if Congress could require people to buy insurance, it could insist they buy a wide array of consumer products.

Roberts asked if the government could require people to buy cell phones so they could promptly report road accidents, while Scalia asked if the government could “make people buy broccoli.’’

Alito, pointing out that everyone eventually will be either buried or cremated, wondered if the government could compel people to pay in advance for burial costs.

But it was Kennedy’s skepticism that could pose the greatest danger to the new law. Although Kennedy was appointed to the bench in 1988 by Republican President Ronald Reagan, he has emerged as the court’s swing vote, veering either to the right or the left depending on the case.

Kennedy told Verrilli that the government was asking the justices to move “a step beyond’’ what they have ruled in the past and pointedly added that the Obama administration has a “very heavy burden of justification’’ to demonstrate that Congress can require people to buy insurance.

Kennedy’s comments, however, do not guarantee that he will join Roberts, Scalia, Alito and Clarence Thomas in striking down the mandate. Oral arguments can be notoriously misleading as justices often pose questions that do not reflect their own legal views.

The court appeared to split apart on predictable lines. The four justices appointed by Democratic presidents — Ruth Bader Ginsburg, Elena Kagan, Stephen Breyer, and Sonia Sotomayor — appeared sympathetic to the new law.

Ginsburg, in particular, was the most assertive, pointing out if a person chooses not “to participate in the insurance market,’’ he or she is “making it more expensive for people who do.”

Sotomayor noted that “virtually nobody except for one percent of the population can afford’’ to pay crushing medical bills.’’

As often happens in oral arguments, justices used their questions to indirectly talk to one another. When Ginsburg contended that those who do not buy insurance are raising the premiums for others, Scalia shot back, “You could say that about buying a car?’’

“What is left if the government can do this?’’ Scalia asked. “What else can it not do?’’

The justices are expected to issue their ruling by late June or early July.