Obamacare Mandate's Future Largely Rest With Justice Kennedy

From Lyle Denniston at SCOTUSblog:

If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive.  If he does, he may take Chief Justice John G. Roberts, Jr., and a majority along with him.  But if he does not, the mandate is gone.  That is where Tuesday’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior.

If the vote had been taken after Solicitor General Donald B. Verrilli, Jr., stepped back from the lectern after the first 56 minutes, and the audience stood up for a mid-argument stretch, the chances were that the most significant feature of the Affordable Care Act would have perished in Kennedy’s concern that it just might alter the fundamental relationship between the American people and their government.   But after two arguments by lawyers for the challengers — forceful and creative though they were — at least doubt had set in and expecting the demise of the mandate seemed decidedly premature. 

The Justices will cast their first votes on the mandate’s constitutionality later this week, and there are perhaps three months of deliberations that would then follow.

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published this page in In The News 2012-03-27 17:00:00 -0400
Analysis & Political Strategy