Obamacare faced a tough crowd at the U.S. Supreme Court last week. But those tough, probing questions from Justice Anthony Kennedy, the court's key swing voter, give defenders of the Affordable Care Act reasons to have hope.
It is always unwise to read too much into the questions the justices ask during arguments. But at this point, it seems likely that Obamacare's fate will hinge on its least popular feature, according to polls: the individual mandate that requires the uninsured to buy health insurance or face a fine.
The issue pressed by Kennedy's questions, in particular, was whether there is a "limiting principle" that will prevent the government from forcing us to buy other things that might be good for us -- like, say, health club memberships or healthy vegetables.
But as Kennedy's tough questioning persisted, he sounded increasingly like he was searching less for ammunition than for reassurance. Was he looking for holes in the administration's argument in order to knock it down or to help him prepare arguments in its defense?
Justice Kennedy asked Solicitor General Donald Verrilli if he saw any limits on the Commerce Clause of the Constitution, a clause that provides the main argument for the government to regulate health care. To be persuaded, Kennedy undoubtedly needed to hear a "yes" answer.
And he got it, although Verrilli, unfortunately, stumbled in ways that brought generally poor reviews from media analysts. That was unfortunate, as unpopular as the mandate may be, the arguments in its favor are strong.
For one, there's no question that health care falls under interstate commerce. If you have an accident while visiting another state, for example, your health insurance coverage follows you.
And the slippery slope "broccoli" argument, echoed by several conservative justices, also echoed the talk-show rhetoric of the tea party extremists protesting outside the Supremes' courthouse. But it is easily refuted. First of all, health care is not broccoli, as the Obama administration argued. We don't all eat broccoli but virtually all of us use the health care system.
Yet, when the health care market provides free care for hospital emergency room visits, among other examples, we all wind up having to pay for it in higher insurance and health care costs.
Besides, those who talk about Obamacare intruding into the health care market need to remember how much government already is in health care, especially with the very popular programs of Medicare and Medicaid. As Justice Ruth Bader Ginsburg pointed out, Congress requires us to pay for Medicare or Social Security, even if we think we won't need it.
Ironically even the court's conservatives indicated no hint of a constitutional objection to a single-payer plan, in which the government provided insurance as it does with Medicare. But, as anyone who remembers the prolonged debate knows, congressional Republicans would not even go along with a tax, let alone a mandate -- even though the mandate idea originated with the conservative Heritage Foundation in the late 1980s.
There's an irony: The same democratic process that produced Obamacare provides the best "limiting principle" now. We may see that demonstrated once again, if the high court sends Obamacare back to Congress. If so, history might repeat itself.
But, who knows? By the time the high court decides, I expect support for Obamacare to grow, once the public can get past the mandate and focus on its more popular features.