Before Tuesday, most legal analysts seemed to agree that the Supreme Court would probably uphold health care reform’s individual mandate — even if the conservative justices had to hold their noses to do it. 
 
 Just minutes into the oral argument Tuesday, that conventional wisdom fell apart. 
 
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 All of the conservative justices asked such tough questions about the individual mandate during Tuesday’s arguments that it’s no longer clear that the Obama administration can get a fifth vote to uphold it. 
 
 Even Justice Anthony Kennedy — the swing vote everyone was watching — signaled that he has serious doubts about the mandate. That became clear early in the session, when he asked Solicitor General Donald Verrilli Jr. if the government could require purchase of certain food. 
 
 “Here the government is saying the federal government has a duty to tell citizens it must act,” Kennedy said. That changes the relationship between the government and the person “in a fundamental way.” 
 
 And even though Chief Justice John Roberts seemed to agree with the government that all people will consume health care at some point in their lives, he worried that the health care law would open the door to many other mandates. 
 
 Roberts argued that if the court says Congress can regulate anything people buy just because of how they pay for it, “all bets are off.” Today it is health insurance, he said, and then “something else in the next case.” 
 
 “Once we accept the principle, I don’t see why Congress’s power is limited,” Roberts said. 
 
 The most famous hypothetical purchase before Tuesday was broccoli. On Tuesday, the justices peppered Verrilli with questions about the mandatory purchase of cellphones, gym memberships and burial insurance. 
 
 The tone of the questions has made legal observers more doubtful that the court will uphold the mandate. Sometimes, the justices just ask tough questions to draw out the best defense of the law. 
 
 But these ones were really tough. 
 
 “This was a train wreck for the Obama administration,” CNN legal analyst Jeffrey Toobin said moments after the arguments ended. “This law looks like it’s going to be struck down. I’m telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong.” 
 
 And SCOTUSblog publisher Tom Goldstein — who predicted at a POLITICO Pro panel discussion last week that the court would likely uphold the law — wrote that there was “no fifth vote” yet. 
 
 “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,” Goldstein wrote. “If he does, he may take Chief Justice John G. Roberts, Jr., along with him. But if he does not, the mandate is gone.” 
 
 This article first appeared on POLITICO Pro at 1:02 p.m. on March 27, 2012. ||||| WASHINGTON — With the fate of President Obama’s health care law hanging in the balance, a lawyer for the administration faced a barrage of skeptical questions on Tuesday from four of the Supreme Court ’s more conservative justices, suggesting that a 5-to-4 decision to strike down the law was a live possibility. 
 
 Predicting the result in any Supreme Court case, much less one that will define the legacies of a president and a chief justice, is nothing like a science, and the case could still turn in various directions. But the available evidence indicated that the heart of the Affordable Care Act is in peril. 
 
 The court’s decision is expected by June, and much may change as the justices deliberate and exchange draft opinions in the coming months. 
 
 If the indications from Tuesday’s arguments are correct, though, the ruling may undo parts or all of the overhaul of the health insurance system, deal Mr. Obama a political blow in the midst of the presidential election season, and revise the constitutional relationship between the federal government and the states. 
 
 The tone on Tuesday made a question to be addressed in the third and final day of arguments on Wednesday all the more important: If the individual mandate requiring most Americans to obtain health insurance or pay a penalty fell, what other parts of the law would fall along with it? 
 
 On Tuesday, Justice Anthony M. Kennedy, the court’s swing justice, asked a host of questions indicating discomfort with the law. 
 
 “Can you create commerce in order to regulate it?” Justice Kennedy asked the administration’s lawyer, Solicitor General Donald B. Verrilli Jr., only minutes into the argument. He later told Mr. Verrilli that the federal government faced “a heavy burden of justification” and pressed him to articulate “some limits on the commerce clause” of the Constitution. 
 
 “You are,” Justice Kennedy said, “changing the relationship of the individual to the government.” 
 
 Justice Kennedy’s questioning is often hard to read, and near the end of the argument he noted that “most questions in life are matters of degree.” But his questioning was, on balance, skeptical. 
 
 Justices Antonin Scalia and Samuel A. Alito Jr. were consistently hostile to the law. Chief Justice John G. Roberts Jr. was a little less so. 
 
 The conventional view is that the administration will need one of those four votes to win, and it was not clear that it had captured one. 
 
 The court’s four more liberal members — Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — indicated that they supported the law, as expected. Justice Clarence Thomas, who asked no questions, is thought likely to vote to strike down the law. 
 
 Everything about Tuesday’s argument was outsize. It was, at two hours, twice the usual length. The questioning was, even for the garrulous current court, unusually intense and pointed. And the atmosphere in the courtroom, which is generally subdued, was electric. 
 
 Mr. Verrilli seemed taken aback by the hostile reception from the court’s conservatives. He got off to a rocky start and never seemed to quite find his footing during his hour at the Supreme Court lectern. 
 
 Paul D. Clement, representing the 26 states challenging the law, and Michael A. Carvin, representing private challengers, were more assured, perhaps encouraged by the first part of the argument. Mr. Clement is a particularly fluid and conversational advocate, and he seemed eager to parry questions from the court’s liberal wing. 
 
 Wednesday’s argument about the other elements of the law may provide further clues about the fate of the mandate. It is one thing, after all, to ask questions about a hypothetical ruling striking down the mandate and another to seek practical advice about the consequences of such a decision. 
 
 The central legal question for the justices on Tuesday was whether Congress had exceeded its constitutional authority to regulate interstate commerce in enacting the insurance mandate. 
 
 Mr. Verrilli argued that the law was a valid response to a crisis in the market for health care. The individual mandate, he said, merely regulates how people pay for services they are virtually certain to use at some point in their lives and is well within the authority granted to the federal government by the Constitution. 
 
 Justice Ginsburg seemed to agree, saying the mandate was a response to the fact that uninsured people receive free health care that ends up being paid for by others. “The problem is that they are making the rest of us pay,” she said. 
 
 Justice Sotomayor said Americans would not stand for a system in which children in danger of dying were turned away from emergency rooms. ||||| WASHINGTON -- After the Supreme Court oral arguments in the health care case Tuesday morning, the Obama administration better start preparing for the possibility of a future without the individual mandate. 
 
 From the very start, things did not go well for the government's argument that the requirement under the Affordable Care Act that virtually all Americans have health insurance or pay a penalty is constitutional. 
 
 U.S. Solicitor General Donald Verrilli began his argument not with his usual calm and clear delivery, but rather with a case of coughs that seemed to take him off his game. 
 
 And just as he was starting to recover his composure, Justice Anthony Kennedy, a key swing vote, asked, "Can you create commerce in order to regulate it?" Kennedy's question adopted the framing of the case put forward by those challenging the mandate. 
 
 From there, the barrage against Verrilli did not relent until he sat down nearly an hour later. 
 
 The conservative justices appeared particularly concerned that if they upheld the mandate, Congress would be loosed to regulate nearly anything else it deemed a national problem. 
 
 Verrilli argued that the health care market's unique features allow Congress to require the uninsured to purchase health insurance. 
 
 "The health care market is characterized by the fact that, aside from the few groups that Congress chose to exempt from the minimum coverage requirement, ... virtually everybody else is either in that market or will be in that market," Verrilli said. Plus, he said, "people cannot generally control when they enter that market." 
 
 Chief Justice John Roberts responded, "The same, it seems to me, would be true, say, for the market in emergency services: police, fire, ambulance, roadside assistance, whatever." 
 
 When Verrilli said those services do not constitute markets, Justice Samuel Alito asked what would keep the government from applying to burial services -- which Verrilli conceded do constitute a market -- the same rationale about preventing cost-shifting that it used for health care. 
 
 Verrilli never quite answered that question, pointing instead to the "billions of dollars of uncompensated costs" that distort the health insurance market. 
 
 Alito then flipped the tables, saying that the mandate will require young, healthy people to pay more per year for insurance than they would pay for health care out-of-pocket, thus forcing them "to subsidize services that will be received by somebody else." 
 
 "If you're going to have insurance, that's how insurance works," Justice Ruth Bader Ginsburg argued back, in the first of the four-justice liberal bloc's attempts to shore up the government's case. 
 
 She and Justices Stephen Breyer and Sonia Sotomayor would all leap in to make the government's case themselves after Justice Antonin Scalia invoked the prospect of a broccoli mandate. 
 
 Verrilli could not gain traction with his alternative argument that the mandate falls within Congress' ability to pass laws "necessary and proper" to effectuate its constitutionally enumerated power to regulate commerce. Scalia, who relied on this clause in 2005 to uphold a federal ban on cultivating marijuana for one's own state-legalized medical consumption, said the individual mandate may be necessary to carry out the Affordable Care Act, but it is not proper "because it violated the sovereignty of the States." 
 
 "If the government can do this, what, what else can it not do?" Scalia asked. 
 
 Before he sat down, Verrilli offered his remaining justification that the mandate, with its penalty for non-compliance to be paid through one's tax return, was constitutional under Congress' taxing power. But the justices, from Ginsburg to Scalia, seemed unswayed. 
 
 After a brief halftime, Paul Clement, a former U.S. solicitor general, began his argument on behalf of the 26 states challenging the mandate. 
 
 If Verrilli struggled, Clement shined. The conservative justices remained largely silent as he skated through the liberals' heavy questioning. 
 
 "The mandate represents an unprecedented effort by Congress to compel individuals to enter commerce in order to better regulate commerce," he began, employing the same terms Kennedy used to describe the mandate throughout the government's argument. 
 
 When Breyer rolled out a multi-part question seemingly designed to be his tour de force on the mandate's obvious constitutionality, Clement cut the legs out from under it, noting that Breyer was talking about the wrong constitutional provision. 
 
 Roberts then asked Clement to address the government's contention that "everybody is in this market, so that makes it very different than the market for cars." But it was hard to view this question as anything but diplomatic after Roberts' own clear antagonism to the same contention during Verrilli's hour. 
 
 Instead, Roberts appeared to favor the challengers' belief that the mandate regulates the insurance market, not the health care market, and the consumption of insurance, unlike health care, is not an inevitable fact of life. 
 
 "We don't get insurance so that we can stare at our insurance certificate," Justice Elena Kagan responded when Clement offered her that argument. "We get it so that we can go and access health care." 
 
 Clement parried that remark and concluded his time before the justices apparently unscathed by the liberals' attacks. 
 
 Michael Carvin, representing the National Federation of Independent Business and several individuals, used his half hour as a sort of end-zone dance for the seeming defeat of the mandate, going so far as to chuckle at questions from Breyer and Sotomayor. 
 
 Towards the end of Carvin's argument, Justice Kennedy said that maybe the health insurance market, after all, is unique enough from other industries to allow a mandate to prevent cost-shifting where it might not be permissible in another market. "[M]ost questions in life are matters of degree," he said, softening from the hard line he seemed to take against the mandate during the first half of the argument. 
 
 On rebuttal, Verrilli gamely repeated the mandate's justifications that the conservatives already frowned upon, parting with the one arrow left in his quiver: a plea to the justices' "solemn obligation to respect the judgments of the democratically accountable branches of government." 
 
 Whether one or more of the Supreme Court's conservatives will ultimately come to that conclusion, and thereby defy the expectations they set on Tuesday morning, is anyone's guess. ||||| In a major victory for President Obama, the Supreme Court on Thursday upheld the broad reach of his healthcare law, ruling the government may continue to provide tax subsidies for low- and middle-income people who buy insurance nationwide, even in states that did not create an official insurance exchange of their own. 
 
 The 6-3 decision rejects a second conservative challenge to the law, one which could have left more than 6 million Americans scrambling to pay for their coverage. 
 
 The ruling is a crucial win for the Democratic White House, now that Republicans control the House and Senate. Had the high court ruled for the conservative challengers, it would have put the fate of the law in the hands of GOP leaders on Capitol Hill. 
 
 President Obama declared it a “good day for America," saying the "Affordable Care Act is here to stay." 
 
 “As the dust has settled,” he said, “there can be no doubt that the law is working.” 
 
 California officials and consumer groups cheered the ruling. 
 
 "Now that the Supreme Court has upheld the Affordable Care Act once again, we hope we can stop debating a 5-year-old law and discuss additional ways to reduce health costs," said Anthony Wright, executive director of Health Access California, a consumer advocacy group. 
 
 A court ruling against the Obama administration in the King vs. Burwell case wouldn't have had any immediate effect on Covered California and its 1.2 million consumers receiving subsidies because it's a state-run marketplace. 
 
 Chief Justice John G. Roberts Jr., writing for the court, said tax credits under the law should also be "available to individuals in states that have a federal exchange." 
 
 If no tax credits were allowed in these states, it “could well push a state’s individual market into a death spiral,” he wrote. 
 
 Roberts said the text and structure of the law make clear that Congress intended the insurance subsidies to be available nationwide. 
 
 “Had Congress meant to limit tax credits to state exchanges, it likely would have done so in the definition of an ‘applicable taxpayer’ or in some other prominent manner,” he wrote. “It would not have used such a winding path of connect-the-dots provisions about the amount of the credit.” 
 
 Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan agreed. 
 
 The court’s three most conservative justices dissented. Justice Antonin Scalia called the majority’s opinion “quite absurd." He said it was inarguable that the law as written intended tax subsidies to be limited to the small number of states that established exchanges of their own. 
 
 The majority’s decision, Scalia said, "rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare.” 
 
 He said the two Roberts opinions upholding the health care law "publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others and is prepared to do whatever it takes to uphold and assist its favorites." 
 
 Roberts rejected the conservative challenge that said the court should focus on a four-word passage that seemed to limit insurance subsidies to state-established exchanges. 
 
 When interpreting laws, “we must read the words in context .… Our duty, after all, is to construe statutes, not isolated provisions,” he wrote. 
 
 The decision is a vindication for the president, who had openly questioned the court’s decision to hear the latest challenge. 
 
 By affirming the system of tax subsidies, the justices have the put the law on a firmer legal ground as a nationwide program to help all Americans obtain health insurance they can afford. 
 
 The ruling will also come as a relief to Democratic lawmakers, Congressional aides and health policy advocates who scrambled to put the complex law together late in 2009. They had devised an intricate plan to build on the nation’s private insurance system and require everyone with a taxable income to buy insurance or pay a penalty. For those who could not afford the full cost, they extended government-paid insurance for some and offered tax subsidies for others. These subsidies are offered to those with incomes up to $95,000 for a family of four. 
 
 However, the House and Senate passed different versions of the healthcare law in 2009. After the Democrats unexpectedly lost their 60-vote Senate supermajority after the death of Sen. Edward Kennedy, the two houses agreed early in 2010 to jointly pass the bill that had already passed the Senate. 
 
 Only later did the bill’s supporters realize the Senate version included what critics first called a “wording glitch” that threatened the subsidies. One provision said the subsidies were to help pay for insurance purchased on an exchange “established by the state.” That limitation loomed large by 2012, since most of the states had opted to rely on an exchange established by federal authorities rather than set up their own. 
 
 Aware of the problem, the Internal Revenue Service issued a regulation in 2012 that authorized tax credits for insurance purchased on any government-sponsored exchange, whether state or federal.
– The gist going into today's arguments on health care reform seemed to be that the law would be upheld. But the tone in coverage looks to be shifting after swing vote Anthony Kennedy voiced skepticism about the individual mandate during two hours of oral arguments at the Supreme Court. At one point, Kennedy asked whether the government could force people to buy certain types of food, reports Politico. The mandate "is a step beyond what our cases allow," he said, according to AP. To survive, Obama's reform will likely need the vote of Kennedy or one of the court's other four conservatives. "It was not clear that it had captured one," writes Adam Liptak of the New York Times. “So if I’m in any market at all, my failure to purchase subjects me to regulation?” Antonin Scalia asked, reports the Washington Post. Similarly, Chief Justice John Roberts wondered whether the government could force every citizen to buy cell phones. Ruth Bader Ginsburg defended the law: "The people who don’t participate in this market are making it much more expensive for those that do." To which Scalia responded, “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.” Click for more.