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Supreme Court expresses skepticism over constitutionality of health care mandate

The Supreme Court's conservatives questioned whether Congress has the power to require Americans to buy health insurance. NBC's Pete Williams reports.

Updated at 6:45p.m. ET Two years after a hard-fought victory, President Barack Obama’s signature legislative accomplishment -- the health care reform law -- seemed at risk of being struck down as the Supreme Court heard arguments Tuesday.

“I think it’s very doubtful that court is going to find the health care law constitutional,” NBC’s Pete Williams reported after watching the two hours of oral argument before the high court. “I don’t see five votes to find the law constitutional.”

While it's difficult to know for certain after Tuesday's oral arguments, the conservative justices appeared skeptical of the constitutionality of the law’s requirement that uninsured people purchase insurance.

Read the transcript of Tuesday's arguments here (.pdf)

Court observers caution that one shouldn't read too much into what any particular justice says during oral arguments; a justice will sometimes test out a theory and his or her comments don’t necessarily indicate which way he or she will decide.

But there were few encouraging hints for the Obama administration from Justice Anthony Kennedy, a potential swing vote on the court, or from any of the conservative justices.

NBC's Pete Williams, who has been listening in as the Supreme Court hears arguments about President Obama's health care reform law, says he thinks it's "very doubtful" the high court is going to find the law constitutional.

“It’s risky to predict, but if I had to predict right today, I would say the law is in trouble,” Williams said.

The court is expected to hand down its ruling in June.

Veteran Supreme Court lawyer Tom Goldstein, who was in the court room Tuesday for the arguments, said it was “very worrisome” for the Obama administration’s side of the case. 

The fate of the health care overhaul hinges on the issue the justices weighed during the argument Tuesday morning: does Congress have the power to force individuals to buy a product they otherwise would not have purchased?

Much of Tuesday’s battle focused on the extent of Congress’s reach under the power to regulate interstate commerce which the Constitution assigns to it.

Court signals it will decide constitutionality of insurance mandate

The four liberal members of the court seemed inclined to accept the administration’s s argument that Congress has ample power under the commerce clause to require uninsured people to join the insurance market. 

But Solicitor General Donald Verrilli, arguing the case for the Obama administration, was “hunting for a fifth vote -- and it really wasn’t at all obvious where that might come from,” Goldstein said.

The Supreme Court's conservatives questioned whether Congress has the power to require Americans to buy health insurance. NBC's Pete Williams reports.

Verrilli tried to defend the requirement that uninsured people purchase insurance. “Everyone subject to this regulation is in -- or will be in -- the health care market,” Verrilli told the court. “They are just being regulated in advance. That's exactly the kind of thing that ought to be left to the judgment of Congress and the democratically accountable branches of government.”

But Verrilli came under constant pressure from the conservative justices.

Kennedy asked Verrilli at one point “Can you (the government) create commerce in order to regulate it?” Verrilli replied, “That's not what's going on here, Justice Kennedy, and we are not seeking to defend the law on that basis.”

Listen to that exchange between Justice Kennedy and Donald Verrilli here (.wav)

Kennedy told Verrilli at another point that the high court “must presume laws are constitutional. But, even so, when you are changing the relation of the individual to the government in ... a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?”

Justice Kennedy “seemed to have grave concerns,” Williams reported. It did not seem during the oral argument that Kennedy “found the justification that he needed” for the law, Williams said.

Hear the audio recording of the Supreme Court case on President Obama's historic health care reforms.

Read the transcript of Tuesday's arguments here (.pdf)

Chief Justice John Roberts told Verrilli that the Obama administration’s argument was built on the idea that people can’t control when they enter the market for health care or what they need when they enter that market.

“The same, it seems to me, would be true, say, for the market in emergency services: police, fire, ambulance, roadside assistance, whatever,” Roberts said. “You don't know when you're going to need it; you're not sure that you will. But the same is true for health care. You don't know if you're going to need a heart transplant or if you ever will…. So can the government require you to buy a cell phone because that would facilitate responding when you need emergency services?”

Listen to that exchange between Chief Justice Roberts and Donald Verrilli here (.wav)

Verrilli insisted that the two cases were different. 

In the same vein as Roberts, Justice Samuel Alito said the market for health care was no different from the market for burial. 
“I don't see the difference,” Alito said. “You can get burial insurance. You can get health insurance. Most people are going to need health care, almost everybody. Everybody is going to be buried or cremated at some point. What's the difference?”

Verrilli said “one big difference, Justice Alito, is you don't have the cost shifting to other market participants.” 

Listen to that exchange between Justice Alito and Donald Verrilli here (.wav)

Alito shot back, “Sure you do, because if you don't have money then the state is going to pay for it.” Or he added a family member is going to pay.

Making the most vigorous defense of the law was Justice Ruth Bader Ginsburg who said enactment of the health care law was akin to the creation of Social Security in 1935. 

Art Lien/NBC News

Paul Clement argues on behalf of the respondents of Florida.

“Congress, in the '30s, saw a real problem of people needing to have old age and survivor's insurance,” she said. “And yes, they did it through a tax, but they said everybody has got to be in it because if we don't have the healthy in it, there's not going to be the money to pay for the ones who become old or disabled or widowed. So they required everyone to contribute.” 

Ginsburg said Social Security caused “a big fuss about that in the beginning because a lot of people said -- maybe some people still do today -- I could do much better if the government left me alone. I'd go into the private market… I'd make a great investment, and they're forcing me to paying for this Social Security that I don't want; but, that's constitutional.”

If Congress wants to address the problem of the uninsured then, Ginsburg said, “Social Security is its model.”

Listen to that exchange between Justice Ginsburg and Paul Clement here (.wav)

Arguing on behalf of Florida and 25 other states was Paul Clement, the former solicitor general in the Bush administration, replied to Ginsburg that Congress could have raised taxes in order to pay for the uninsured -- instead of forcing people to buy insurance. “We could have a tax that's spread generally through everybody to raise the revenue to pay for that subsidy. That's the way we pay for most subsidies.”

Both conservative and liberal justices seemed to agree that Congress could require people who showed up at the doctor’s office for treatment for purchase insurance -- but the conservative justices seemed entirely unpersuaded that Congress could force people to buy insurance before they had any medical need.

Art Lien/NBC News

Attorney Michael Carvin represented the National Federation of Independent Business during the proceedings.

In what might be an encouraging signal for supporters of the health care law, Kennedy did display some concern about younger people who chose to go uninsured.  

In questioning attorney Michael Carvin, who was representing the National Federation of Independent Business, Kennedy raised the possibility that federal intervention might be justified.

“The young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries,” Kennedy said. “That's my concern in the case.”

Carvin replied that “it would be perfectly fine” if Congress allowed insurers to gauge actuarial risk for young people, but the 2010 law prohibits them from buying “the only economically sensible product” -- catastrophic insurance.

NBC's Pete Williams contributed to this report.