ANDREA MITCHELL: The Supreme Court completed its hearings, today’s arguments on health insurance and the mandate. And while it is risky as always to predict what the court will do, it sounds like from today’s arguments, the president’s health care reform could be in serious trouble.
MITCHELL: Chris Cillizza is an MSNBC contributor, managing editor of course, of the Washington Post and washingtonpost.com. Pete Williams is MSNBC’s justice correspondent. Pete, first to you for our daily fix. You’ve just come from the courthouse, what did you hear in those arguments that signaled what the key vote, Anthony Kennedy, might be thinking, at least in the questions he’s asking?
PETE WILLIAMS: I think you put it exactly right, Andrea, because I certainly don’t want to predict what the court is going to do here, because very often the justices ask questions to satisfy themselves about certain things and that doesn’t necessarily indicate how they’re going to vote. But I do think you have to say, first of all you have to write off Justice Scalia right away. I think many people thought he might be willing to uphold this, simply because in the past, he’s voted to uphold very broad commerce clause powers, and some other conservative appeals courts have found ways to uphold it—he seemed to subscribe to none of that. So I think he’s a no vote, it would seem.
WILLIAMS: In terms of Justice Kennedy, most of his questions were along these lines: Isn’t this unprecedented? Has Congress ever required Americans to buy something like this before? And, doesn’t the government have a very heavy burden here to show why it’s constitutional?
WILLIAMS: There were no indications during the two hours of argument that he heard an answer that satisfied him on that point. What the larger court was looking at here, and what the government says is, both sides agree that the government, Congress, could require everyone to buy insurance when they go to the emergency room or the doctor’s office—in other words, at the point of treatment. So what the government says is all it’s doing is shifting the time. It’s saying, don’t wait until you get there, because that’s not practical, the cost would go way up—buy it in advance. The opponents of the health care law are saying, when you do that, you’re requiring everyone to buy insurance, not just the people who plan to go to the doctor’s office or, unplanned, go to the emergency room. You’re covering a larger base of people that way, and of course, they say, you have to do that in order to make this financially work, but they say it’s unconstitutional.
WILLIAMS: So, I think, Andrea, it seems to me that if it continues this way, there are probably not five votes to uphold it; there probably are five votes to strike it down. But again, that’s the way it seems right now, at 1 p.m., an hour after the argument, and that doesn’t count. It’s what happens when they sit down to write the opinion that counts, and we probably won’t know the answer until late June.