Justices question government's case for Obamacare

Washington Post:

...U.S. Solicitor General Donald B. Verrilli Jr., representing the government, was the first to argue Tuesday, and he immediately found himself assailed by skeptical questions from some of the court’s conservatives. The lawyers for the parties challenging the law were scheduled to present their arguments after Verrilli. 

“So if I’m in any market at all, my failure to purchase subjects me to regulation?” Justice Antonin Scalia wanted to know. 

Chief Justice John G. Roberts Jr. wondered if the government could require everyone to buy cellphones, since that would facilitate the government’s system for providing fire and ambulance services in emergencies. 

Verrilli repeatedly countered that the health-care market was unique because no one can predict what services they will need and when. 

But Justice Samuel A. Alito Jr. brought up burial services. Aren’t people who don’t have burial insurance making a decision about how they are going to pay for their inevitable funeral? he asked. He characterized the underlying logic as “artificial.” 

Justice Stephen G. Breyer rose to the government’s defense. 

If the United States had a burial insurance market equivalent to the extensive system of private and public insurance that it has for health care, perhaps it would not be inappropriate to require people to obtain burial plans, he said. 

It was not the only moment the debate seemed to be among the justices rather than between them and Verrilli. 

When Justice Ruth Bader Ginsburg observed that “the people who don’t participate in this market are making it much more expensive for those that do,” Scalia interjected,“You could say that about buying a car. If people don’t buy a car, the price [that car buyers] will pay will be more.”...

It looks like we are going well beyond the broccoli  requirement question that first arose in the lower courts.  So far, the story does not reflect any questions from Swing vote Kennedy.  It will be interesting to hear what questions he asks.  It would seem that the four conservative votes are pretty solidly against the mandate.

The Hill reports that Kennedy also weighed on on the problem with the mandate, causing one analyst to suggest the law was in grave danger.

...Kennedy argued the court has a “very heavy burden of justification” for requiring that people purchase insurance. 

Kennedy also said the mandate would change the relationship between the government and individuals in a “fundamental way.” ...

I think it is in trouble.