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Clement argues before the court (AP/Dana Verkouteren)

Day two

Supreme Court | After Tuesday's oral arguments, survival of the healthcare law's individual mandate appears in doubt

WASHINGTON-In the space of two hours of oral arguments, the U.S. Supreme Court seemed ready to overturn the center of the healthcare law. But Democrats comforted themselves that oral arguments often don't express the court's position.

The high court heard arguments on the cornerstone of the 2010 legislation Tuesday: the individual mandate, which 26 states as well as the National Federation of Independent Business had challenged (download a PDF of the court's transcript). The mandate requires every American to buy health insurance beginning in 2014, or pay a penalty that ranges from $95 to $695, and up to $2,085 for a family. The key legal question is whether the federal government has authority under the U.S. Constitution's Commerce Clause to require people to buy health insurance, and most of the justices seemed to think it did not.

"If the government can do this, what else can it not do?" asked Justice Antonin Scalia, who suggested that the government could next require people to join gyms and exercise in order to lower everyone's health costs. The liberal justices likened the mandate to the requirement that everyone pay into Social Security, and said that the uninsured are already receiving health benefits without paying, raising other people's premiums.

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Justice Anthony Kennedy, the key voice and possible swing vote, asked in his first question, "Can you create commerce in order to regulate it?" That question was exactly lawyer Paul Clement's argument on behalf of the 26 states challenging the law: that the government could not create commerce, forcing people to buy insurance. Solicitor General Donald Verrilli Jr. argued on behalf of the government that the commerce already exists because everyone is a participant in the healthcare market at some point in their lives.

The liberals on the court-Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan-appeared supportive of the mandate. The conservatives-Chief Justice John Roberts as well as Justices Scalia and Samuel Alito (Justice Clarence Thomas traditionally does not speak during oral arguments)-indicated that they believe the mandate is unconstitutional. The remaining justice, Kennedy, said at one point that the mandate "changes the relationship of the federal government to the individual in a very fundamental way." He also asked whether the mandate is "a step beyond what our cases allow," meaning that it wasn't permitted under legal precedent.

"That's not what's going on here," replied Verrilli, adding that before the law the health insurance market was too expensive and prevented some individuals from entering the market. The conservative justices countered that the government was requiring individuals to enter the insurance market when they didn't want to.

"Both sides staked out their positions prior to the arguments," said attorney Michael Carvin afterward. Carvin argued before the justices on behalf of the National Federation of Independent Business, opposing the mandate.

If the oral arguments did matter in deciding any justice's opinion, the lawyers opposing the mandate seemed to have the upper hand. Clement, the attorney arguing for the 26 states opposing the mandate, is a star in the conservative legal firmament, arguing a number of blockbuster Supreme Court cases this term, including the Arizona immigration law case next month.

By all accounts, Clement shone, while Solicitor General Verrilli seemed unprepared for certain questions and perhaps even nervous, stuttering and repeating words at times. In fact at certain points the liberal justices jumped in to make Verrilli's arguments for him, with Ginsburg at one point saying, "I thought that your main point is. …"

Roberts, without mentioning the contraceptive mandate, touched on the wider issue of requiring individuals to purchase insurance that covers items they don't want or need.

"If I understand the law, the policies that you're requiring people to purchase must contain provision for maternity and newborn care, pediatric services, and substance use treatment," he said. "It seems to me that you cannot say that everybody is going to need substance use treatment, pediatric services, and yet that is part of what you require them to purchase."

Verrilli replied, "[The statute] is trying to define minimum essential coverage. …"

"But your theory is that there is a market in which everyone participates because everybody might need a certain range of healthcare services," Roberts said. "And yet you're requiring people who are never going to need pediatric or maternity services to participate in that market."

Though none of the justices mentioned the contraceptive issue-that isn't the subject of any of the cases the court agreed to hear-that was the central issue for most protestors outside the court Tuesday. Most of the several hundred protestors were associated with Planned Parenthood and NARAL Pro-Choice America, and carried pink printed signs that said, "Protect Women's Health," and others that said, "BC4M: Birth Control for Me." Fewer-and less organized-protestors battled with homemade signs that said, "Obamacare: War on Religion," and, "Is it your right to take my money to kill the unborn? No!"

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