Obamacare's individual mandate, the heart of the law which makes the guaranteed issue (can't reject people for pre-existing conditions) and community rating (can't charge sick people more) work, appears on its way to being struck down. Scalia, Alito and Thomas are clearly against it, while Ginsburg, Kagan, Sotomayor and Breyer definitely for it. That leaves Roberts and Kennedy as the deciders. If either one voted in favor of the law, it would stand, but both expressed significant reservations about the constitutionality of the mandate during oral arguments yesterday. CNN's legal analyst and former Harvard Law Review editor Jeffrey Toobin said this morning he believes the individual mandate is "doomed".
Both Roberts and Kennedy seem to think that the individual mandate is an unprecedented expansion of government power. This is unfathomable to me, given the realities of Social Security and Medicare. It's settled that, if the government wants, it can take your money and set up massive federally-run systems with it. It can throw you in jail if you refuse to give up this money (payroll taxes). But the court appears on the verge of saying that the government can't require you to spend your money with the provider of your choice. It seems obvious that the mandate is less of a use of government power than Medicare. So why is Kennedy talking about the mandate as if it's a step down a slippery slope?
Roberts asked the government's lawyer if the government could use the precedent potentially set by upholding the mandate to force people to buy cell phones for use in calling 911 in an emergency. The difference here is that there is not a biological certainty that you will eventually need to call 911, as there is a biological certainty that you will need health insurance.
More generally, it's unbelievable that health insurance for 30 million people can be eliminated after only 6 hours of public discussion. Multiple reporters present for the arguments yesterday noted that the government's lawyer coughed at the start of his presentation, and apparently it "threw him off his game". If one guy having a tickle in his throat matters, the system doesn't work. It's too high stress/high stakes of a situation to be a good way to come to the right decision.
We'll see how it goes. Maybe Kennedy or Roberts were just looking for reassurance of what they already think. But I'm definitely not feeling good about things at the moment.