It was high drama inside the Supreme Court today. The individual mandate - the key element of ObamaCare - was at the center of the debate. The issue: Does the individual mandate, which requires Americans to purchase health insurance, violate the Commerce Clause of the Constitution? If the government can force you to buy health insurance, where does it stop?
What was very encouraging today is that Justice Anthony Kennedy, considered to be the swing vote in this issue, expressed deep skepticism about the constitutionality of the mandate. In fact, he called such an idea "unprecedented" and told the Solicitor General that the government needed to answer a "very heavy burden of justification" to show how the Constitution authorizes Congress to require that people buy insurance.
As I told Megyn Kelly on FOX News today, the concerns raised by Justice Kennedy, are very telling. You can watch the interview here.
As you know, I have repeatedly said it's difficult to judge the outcome of a Supreme Court case based on oral arguments. What did become clear today is that with an increasing level of skepticism about the individual mandate - and now from Justice Kennedy - this could spell real trouble for the survival of ObamaCare.
In our amicus brief filed at the high court, we represent 119 members of Congress and nearly 145,000 Americans urging the Justices to reject the individual mandate.
You can listen to the oral arguments and read a transcript of the arguments from today's session here.
Tomorrow: the focus is on severability. If the mandate is declared unconstitutional, does the whole health care law go? We think the answer has to be yes. We'll have details and analysis of Day Three on our daily radio broadcast.
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