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SCOTUS update: End of Day 2


The Supreme Court has just adjourned the second day of oral arguments as they consider the constitutionality of ObamaCare and its individual mandate.  According to Politico, the court's conservative justices and potential swing vote Anthony Kennedy raised concerns today that "forcing Americans to buy health insurance would open the door to other intrusive requirements from the federal government, such as making people buy cell phones, burial insurance and gym memberships."

A potential swing vote on the court, Justice Anthony Kennedy, turned to that point early in Tuesday’s session, asking 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, and that changes the relationship between the government and the person “in a fundamental way.”

Verrilli was also asked if the government could require the purchase of cellular phones or burial insurance.

Chief Justice John 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.

This skepticism obviously means there is no fifth vote in favor of the individual mandate at this point -- a good sign for conservatives challenging the law.  But the liberal justices on the court aren't going down without a fight:

During the early questioning, at least three of of the liberal justices, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, challenged the conservative wing.

Ginsburg argued that forcing people to buy food is different than requiring them to purchase insurance, citing a friend-of-the-court briefing that uncompensated care leads to higher costs for all consumers. Uninsured people are passing their costs on to others, and that’s why Congress can regulate them, Ginsburg suggested.

Arguments will pick back up tomorrow with 90 minutes of debate on "severability" -- the issue of whether the law could stand if the individual mandate is struck down.

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