We said last week that we expected the Supreme Court to strike down the Individual Mandate in its health care reform hearings.Tuesday's session confirmed our suspicions.
The individual mandate is the feature of the Affordable Care Act that requires nearly all citizens have some sort of coverage -- either government programs such as Medicaid or, if they don't qualify for that, private insurance provided via exchanges or on the market.
The near-universal involvement shares the risk sufficiently, advocates say, to bring the cost of insurance way down. But it also requires many citizens to purchase a service, which opponents find unconstitutional.
As reported by the New York Times, the Administration "faced a barrage of skeptical questions from four of the court’s more conservative justices" -- e.g., Justice Scalia, "May failure to purchase something subject me to regulation?" (Also, via the Washington Post: "Government is supposed to be a government of limited powers... What is left if the government can do this? What can it not do?")
This is no shock. The Court is generally portrayed as ideologically split between four conservatives and four liberals, with Justice Kennedy providing the "swing" vote. It's not a hard and fast rule but, as we said, it seems to apply when major political issues come to the Court. This is a major political issue, and the Justices are clearly eager to engage.
And whither Kennedy?
The Huffington Post said, "Kennedy at one point said that allowing the government mandate would 'change the relationship"' between the government and its citizens."
You can scan the transcript of Tuesday's hearing yourself for more such Kennedy quotes -- e.g., "Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?"
CNN legal analyst Jeffrey Toobin "thought Justice Kennedy, the perennial swing vote, was a 'lost cause' for supporters of the health care reform law," reports Talking Points Memo. (Toobin also said, "This law looks like it's going to be struck down. I'm telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong.")
We still think the Justices will stand for severability, which will technically allow the Affordable Care Act to go forward -- but in such a badly crippled form that it will have to be put out of its misery sooner or later.
So get ready, America -- your health care system will be back to the status quo ante before long.