If Justice Anthony M. Kennedy can locate a limiting principle
in the federal government’s defense of the new individual health insurance
mandate, or can think of one on his own, the mandate may well
survive. (the words are Lyle Denniston; the highlight is mine. The first in a series of votes by the nine justices will occur no later than Friday of this week, with the final decision being published sometime in late June.)
If he does, he may take Chief Justice John G. Roberts, Jr., and
a majority along with him. But if he does not, the mandate is gone.
That is where Tuesday’s argument wound up — with Kennedy, after first
displaying a very deep skepticism, leaving the impression that he might yet be
the mandate’s savior.
If the vote had been taken after Solicitor General Donald B.
Verrilli, Jr., stepped back from the lectern after the first 56 minutes, and
the audience stood up for a mid-argument stretch, the chances were that
the most significant feature of the Affordable Care Act would have perished in
Kennedy’s concern that it just might alter the fundamental relationship between
the American people and their government. But after two arguments
by lawyers for the challengers — forceful and creative though they were — at
least doubt had set in. and expecting the demise of the mandate seemed
decidedly premature.
You will want to finish this commentary at SCOTUS Blog. Good luck getting on line with the site. I have highlighted what seems to be crux of this debate. More than a dozen analysts have committed to the same assumption. - blog owner.
