If the government can force you to buy health insurance, what can’t they force you to do or buy?
That was the question posed by a number of Supreme Court justices throughout today’s oral argument on the constitutionality of ObamaCare. And that was the question President Obama’s lawyers couldn’t seem to answer.
That question didn’t seem to bother the four liberal justices, who appeared ready to uphold the law. At one point, Justice Breyer suggested that the government could force you to buy things such as cellphones and burial insurance. The remaining justices, however, appeared highly skeptical of the government’s argument. Justice Kennedy and Chief Justice Roberts, largely believed to be the “swing votes” in this case, pressed the administration’s lawyer hard for any kind of limit to the President’s theory.
The government’s best argument, that health care is a special case because nearly everyone will use it at some point, didn’t attract a lot of support. Justices Scalia and Alito, for example, criticized the government’s lawyers for defining the market too broadly. Chief Justice Roberts harshly noted that the type of insurance ObamaCare forces people to buy was completely different from the type of health care these people actually use. Justice Kennedy countered the administration’s argument by saying that the government will say that every market is “unique.”
The fact that the Obama administration didn’t have a good answer for these questions could spell doom for the President’s signature legislation. That doesn’t mean the law will ultimately be struck down. After all, the government needs to convince only one of the conservative justices. But today’s hearing illustrated just how uncomfortable they are with a law that, as Justice Kennedy proclaimed, “changes the relationship of the federal government to the individual in a very fundamental way.” The Supreme Court may uphold the law, but President Obama’s lawyers made clear that if the justices were looking for a limiting principle, they’d have to find one themselves.