By: KQED News Staff and wires

Chief Justice John Roberts is emerging as a potential swing vote. (Courtesy: U.S. Supreme Court)
Chief Justice John Roberts is emerging as a potential swing vote regarding the individual mandate. (Courtesy: U.S. Supreme Court)

Sharp questioning by the Supreme Court’s conservative justices has cast serious doubt on the survival of the individual insurance requirement at the heart of President Barack Obama’s historic health care overhaul.

Arguments at the high court Tuesday focused on whether the insurance requirement “is a step beyond what our cases allow,” in the words of Justice Anthony Kennedy.

He and Chief Justice John Roberts are emerging as the seemingly pivotal votes.

Justices Antonin Scalia and Samuel Alito appeared likely to join with Justice Clarence Thomas to vote to strike down the key provision. The four Democratic appointees seemed ready to vote to uphold it.

The individual mandate requires those not covered by employer-based health insurance, Medicare or Medicaid to purchase coverage, with the help of government subsidies if they meet a certain income threshold.

NPR’s “Shots” blog also reports that the individual mandate appears to be in trouble.

Those challenging the law say the federal government is going way too far with the mandate. This, they say, is the first time the government is making people buy a commercial product they may not want. That’s a huge overreach, they contend.

Just take a look at the very start of the brief filed by Paul Clement, the legal wunderkind who is leading the challenge by 26 states to the overhaul law:

“The individual mandate rests on a claim of federal power that is both unprecedented and unbounded: the power to compel individuals to engage in commerce in order more effectively to regulate commerce. This asserted power does not exist.”

After Clement finished his arguments along those lines, SCOTUSblog’s Tom Goldstein left the courtroom to file an update saying, “The individual mandate is in trouble — significant trouble. It’s too early to tell whether it will be struck down.”

Still, it’s clear that the court’s conservative justices are “quite skeptical.” And Goldstein said, “Paul Clement gave the best argument of any kind that I’ve ever heard.”


Lisa Aliferis

Lisa Aliferis is the founding editor of KQED's State of Health blog. Since 2011, she's been writing stories and editing them for the site. Before taking up blogging, she toiled for many years producing health stories for television, including Dateline NBC and San Francisco's CBS affiliate, KPIX-TV. She also wrote up a handy guide to the Affordable Care Act, especially for Californians. You can follow her on Twitter: @laliferis

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