Justices Pounce upon ACA Mandate Defenders on Day 2

March 28, 2012
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Will SCOTUS kill the mandate provision? The mainstream blogsophere (and media) are buzzing about the hard-hitting line of questioning lobbied at the U.S. today as to the consitutional merits of a mandate to purchase insurance as a proper provision under the ACA. Antonin Scalia apparently wasted no time in using the oft-quoted broccoli argument conservatives have been making while characterizing the long reach of government in individual liberty.

Will SCOTUS kill the mandate provision? The mainstream blogsophere (and media) are buzzing about the hard-hitting line of questioning lobbied at the U.S. today as to the consitutional merits of a mandate to purchase insurance as a proper provision under the ACA. Antonin Scalia apparently wasted no time in using the oft-quoted broccoli argument conservatives have been making while characterizing the long reach of government in individual liberty.

Perhaps it’s the eleventh hour wave of national conservative populism. Perhaps it’s the sudden swing rightward by wayward justice Kennedy. Perhaps it’s the potential backlash of “Obama’s signature domestic issue” which is astroturfing and energizing anti-Obama sentiment that could very well usurp his chances at re-election. Whatever it is, Kennedy’s words appear to be stoking those flames.

And the government tells us that’s because the insurance market is unique. And in the next case, it’ll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in this case.

The transcript of today’s deliberations is here and here. [PDF]