Prior to Tuesday’s arguments before the Supreme Court, I believed that the Court would uphold the health insurance purchase mandate by a comfortable margin. Unlike the Rehnquist Court, the Roberts Court has not made federalism a signature issue, and justices such as Antonin Scalia seemed amenable to the exercise of federal powers consistent with commerce clause precedents. My reasoning, discussed in my earlier blog posting, was that the health care market is the most encompassing national commercial market in America, consuming some 17% of GDP, and with pharmaceuticals, medical equipment, electronic medical records, and insurance claims all moving widely across the nation. The Court’s precedents all pointed toward a broad scope for the commerce authority.
Having heard the arguments on Tuesday, I now believe that health care reform hangs in the balance. Although the tenor of the arguments cannot necessarily predict the result, the Court’s conservative bloc expressed skepticism about the constitutionality of the mandate. Justice Kennedy, often the pivotal vote in close cases, expressed the view that the mandate fundamentally changed the relationship between the individual and the state. Health care reform does do that, but only in the best possible way: by creating a social contract whereby everyone is entitled to access affordable care. And the Affordable Care Act (ACA) establishes this social contract in a way that is in my view clearly constitutional. READ MORE »