A Bad Day in Court?

The conventional wisdom from “experts’” polling has been that President Obama’s health care reform law is likely to be upheld by the Supreme Court. But after today’s arguments, it sounds like that narrative may have changed. CNN’s senior legal analyst Jeffrey Toobin, who previously predicted that the Obama administration would prevail at the Supreme Court, came out of the hearing today with a very different perspective. Via HotAir:

The Supreme Court just wrapped up the second day of oral arguments in the landmark case against President Obama’s healthcare overhaul, and reports from inside the courtroom indicate that the controversial law took quite a beating.

The Washington Examiner’s Phil Klein reports the conservative justices seemed highly skeptical of the administration’s arguments during questioning, despite speculation that Chief Justice Roberts might rule in favor of upholding the law. Justice Kennedy, who is most likely to be the deciding vote, also appeared dubious:

Justice Anthony Kennedy, long seen as the swing vote in the case, repeatedly said that the mandate was unprecedented and that the government had a “heavy burden” to justify it. He said that it changed the relationship between the individual and the government in a “fundamental” way.

Also, one of the key arguments made by challengers in the case, is that earlier rulings of the Commerce Clause don’t apply here because the mandate forces people to enter the stream of commerce. On this point, Kennedy asked Obama’s Solicitor General Donald Verrilli, “Can you create commerce in order to regulate it?”

The argument today centered on whether or not the individual mandate is a tax. The administration maintains it is a tax, which gives Congress the constitutional authority to implement it. By all accounts, the justices didn’t seem to accept that characterization of the mandate today. But of course, this is all speculation based on the questions and tone from the justices – which isn’t always an accurate indicator of where they stand – and there’s still another day of arguments tomorrow.