(Photo: Reuters/Jason Reed)
After hearing the oral arguments in the Supreme Court case on the Affordable Care Act's (2010) individual mandate to purchase health insurance, court watching experts believe the mandate will be ruled unconstitutional.
"I think this law is in grave, grave trouble," CNN Senior Legal Analyst Jeffrey Toobin said after hearing Tuesday's arguments.
The justices appeared split along liberal/conservative lines. The questioning by the four liberal justices – Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor – appeared to defend the law. Conservatives Samuel Alito, John Roberts and Antonin Scalia appeared doubtful of the law's constitutionality. Clarence Thomas never asked questions during oral arguments, but usually sides with conservatives. And, Anthony Kennedy, who is usually the swing vote, appeared to side with the conservatives on the court.
"This was a train wreck for the Obama administration," Toobin said. "This law looks like it's gonna be struck down. I'm telling you, all the predictions, including mine, that the justices would have no problem with this law were wrong. Justice Kennedy, the swing vote, was enormously skeptical."
Toobin was also surprised that Solicitor General Donald Verrilli, who was tasked with defending the law before the justices, had a poor performance.
Verrilli "did a simply awful job defending the law," Toobin said. "He was nervous. He was not well spoken."
The main issue in front of the court was whether or not Congress has the authority under the Constitution's Commerce Clause to require individuals to purchase health insurance. Kennedy's questions suggested that he believes Congress does not have that authority. He asked Verrilli if Congress can create commerce in order to regulate it.
Chief Justice Roberts seemed particularly concerned about where the limits of congressional authority lie if Congress can mandate the purchase of a product.
"All bets are off," Roberts said, if Congress has such authority.
The liberals on the court suggested that everyone will require health care at some point in their lives so they can be required to pay into a system that is intended to be there for them when they need it. Ginsburg noted that people who do not buy health insurance are making health insurance more expensive for people who do.
Kagan said the issue is really about one of timing because the government can mandate that you purchase health insurance when you need it.
The individual mandate is the most controversial aspect of the Affordable Care Act. On Wednesday, the final day of arguments on the law, the court will address the question of whether they can strike down part of the law, such as the individual mandate, without striking down the entire law. The ruling is expected in June.