Swing justice poses tough questions on ObamaCare at Supreme Court hearing
By Lee Ross
Published March 27, 2012 | FoxNews.com
The man often known as the Supreme Court's swing justice posed tough questions about the scope of the controversial health care overhaul Tuesday, suggesting he might have doubts about its validity.
Justice Anthony Kennedy did not tip his hand as to how he might ultimately vote in the case -- a ruling is not expected until summer.
But on the most important day of hearings for the landmark case, the entirety of the bench was thoroughly engaged for a two-hour debate over the constitutional merits of President Obama's health care law. Based on the tenor of Tuesday's arguments, the justices appear to be closely divided and the case may ultimately come down to the views of Kennedy.
Kennedy, cutting to the heart of the debate over the so-called individual mandate -- which was the focus of Tuesday's hearing -- asked the federal government's attorney to explain what constitutional power the government had to force all Americans to obtain health insurance.
"Can you create commerce to regulate it?" Kennedy asked Solicitor General Don Verrilli. That question addressed a key issue in the case about whether Congress exceeded its regulatory authority under the Commerce Clause.
Later, Kennedy said the law was unique and felt it was "changing the relationship between the individual and the (federal) government." He acknowledged the Court normally gives Congress the benefit of the doubt on laws that it passes but in this instance there was a "heavy burden of justification" necessary for supporters of ObamaCare to prove its legal worth.
What's not clear is if the answers provided by Verrilli satisfied Kennedy's apparent doubts.
The comments and questions from the other justices generally suggested they would fall along familiar ideological divisions.
"The argument here is that this ... may be necessary, but it's not proper because it violates an equally evident principle in the Constitution, which is that the federal government is not supposed to be a government that has all powers," Justice Antonin Scalia, considered to be on the conservative side of the bench, said at one point. "That it's supposed to be a government of limited powers. And that's what all this questioning has been about. What is left? If the government can do this, what, what else can it not do?"
Obama appointee Justice Elena Kagan, though, appeared to defend the law, seemingly echoing Verrilli's point by asking, "in this context, the subsidizers eventually become the subsidized?"
At the start of his arguments, oddly interrupted by a scratchy throat, Verrilli plainly stated that "the Affordable Care Act addresses a fundamental and enduring problem in the health care system and economy."
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Click here for the full transcript of the hearing.
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