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Mid-argument update (with audio)

(10:52am) – I left the Court to provide this update. We are halfway through the mandate argument; the SG is done. It is essentially clear that the four more liberal members of the Court will vote in favor of the mandate. But there is no fifth vote yet. The conservatives all express skepticism, some significant. They doubt that there is any limiting principle. But we’ll know much more after the other side goes because arguments are often one-sided like this half way through.

(11:32am) – Amy Howe has stepped out to provide an audio update (at bottom of page).

For those who prefer reading, here is a summary of Amy’s report:

In the first hour of the Supreme Court oral arguments relating to the constitutionality of the individual health insurance mandate, Solicitor General Donald Verrilli took the podium.  The good news for Verrilli, the government, and the supporters of the mandate is that the four liberal Justices asked relatively few questions, and the questions were largely friendly.  The bad news is that there is no apparent fifth vote in support of the constitutionality of the law.  When the Solicitor General argued that the mandate does not require people to purchase health care, but instead merely regulates when and how they will pay for that care, Justice Kennedy seemed skeptical, asking whether Congress’s power to regulate commerce allows it to create commerce to then regulate.  Other conservative Justices – Chief Justice Roberts, and Justices Scalia and Alito – also seemed skeptical of the government’s arguments, focusing on whether there is a limiting principle:  they wanted the government to explain whether Congress can force individuals to buy things other than health insurance, including cars and broccoli, or whether the government can require that individuals exercise. It will be interesting to see whether the Justices’ questions for the health care challengers reveal anything different about their inclinations.

Recommended Citation: Tom Goldstein, Mid-argument update (with audio), SCOTUSblog (Mar. 27, 2012, 10:52 AM),