Some further evidence that Justice Anthony Kennedy has some sympathy for the Obama administration’s argument that opting not to purchase health insurance impacts the interstate market regardless.
Kennedy said this during a exchange with the GOP’s attorney Paul Clement:
JUSTICE KENNEDY: But they are in the market in the sense that they are creating a risk that the market must account for.
This is key to the argument for the constitutionality of the mandate — while challengers argue that Congress may not force people to purchase a good, proponents say there’s no such thing as “inactivity” when it comes to the health insurance market for the reason Kennedy articulated.
Kennedy asked both sides tough questions, so it’s not clear overall how he will rule.