I call it defending the indefensible. What unfolded inside the Supreme Court on the individual mandate was very clear and direct. Justice Anthony Kennedy, considered to be the swing vote in this issue, expressed serious skepticism about the constitutionality of the mandate - the government requiring citizens to purchase health insurance.
And, his skepticism comes with good reason. The Solicitor General, who had a difficult day articulating his position supporting the mandate, simple did not have a viable defense. There is no 'limiting principle' here. In other words, if the government gives the green light to mandate the purchase of health insurance, where does it stop?
As I told Sean Hannity on FOX News, the most important development in the oral arguments about the individual mandate came when Justice Kennedy said the mandate fundamentally changes the relationship of a citizen with the government. You can watch the interview here.
You can never read the tea leaves and predict the outcome of a Supreme Court case based solely on oral arguments. I've had the privilege to present oral arguments before the high court 12 times, and participate in 20 cases. What happens during oral argument certainly plays a key role in the final decision, but it's always risky to predict an outcome based on that dynamic alone.
What I do know is this. Going into the arguments, those who supported the individual mandate thought their position would carry the day with ease. When the arguments were over, it was a different story. With Justice Kennedy voicing serious concerns about the mandate, it's fair to conclude the mandate may be in big trouble.
The high court now focuses on the severability issue - whether ObamaCare can stand even if the mandate is struck as unconstitutional. Our position is clear - both the mandate and the entire health care law need to go.