Sahil Kapur

Sahil Kapur is TPM's senior congressional reporter and Supreme Court correspondent. His articles have been published in the Huffington Post, The Guardian and The New Republic. Email him at sahil@talkingpointsmemo.com and follow him on Twitter at @sahilkapur.

Articles by Sahil

If conservative Justice Antonin Scalia hadn't already made up his mind on the individual mandate before Tuesday's oral argument, he apparently wanted people in the court to think otherwise.

Scalia aggressively questioned the Obama administration's lawyer Donald Verrilli on the limits of federal power, and how they might be impacted if the health care law's requirement to purchase insurance is upheld.

That may not seem like much of a surprise. But Scalia's opinion in a recent, key case -- one that hinged on a similar question of the extent of Congress' commerce clause power -- convinced many health care reform supporters he might be in play.

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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.

Chief Justice John Roberts, Justices Samuel Alito and Justice Anthony Kennedy on Tuesday asked the Obama administration's lawyer questions about the limits of federal power if the health care law's individual mandate is upheld.

Roberts asked if Congress can require people to buy cellphones in order to make sure they can get emergency assistance when they need it. Alito asked a similar question regarding burial services, given that everyone will eventually need it in some form or another

Kennedy asked whether Congress has a "heavy burden to show" before requiring people to buy a product.

Both Roberts and Kennedy did, however, appear sympathetic regarding the proximity of health insurance regulation to the interstate market, which is critical to the constitutional question.

Meanwhile, following the end of oral arguments, CNN Legal Analyst Jeffrey Toobin said on CNN that based on what he heard inside the Court, things didn't look good for proponents of the law.

"This was a train wreck for the Obama administration," he said. "This law looks like it's going to be struck down. I'm telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong... if I had to bet today I would bet that this court is going to strike down the individual mandate."

Justice Antonin Scalia indicated deep skepticism with the individual mandate during Tuesday's oral arguments.

He probed what the limits are if government can force people to purchase a good, and even brought up the hypothetical "broccoli" mandate that conservatives often invoke.

Scalia indicated that he believes the mandate may be "necessary" for regulation of economic activity with regard to insurance, but not necessarily "proper."

He didn't offer any hints that he's sympathetic to the provision.

The linchpin of President Obama's health care law will come into focus Tuesday as the Supreme Court hears two hours of oral arguments on whether Congress can require Americans to purchase insurance.

For supporters and foes of the law, and for court watchers who have been awaiting this case for over two years, Tuesday is the main event.

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Arch-conservative Rep. Louie Gohmert (R-TX) warned Monday that if the Supreme Court were to uphold the health care reform law, it could lead to a "redneck president" imposing a separate brand of mandates on Americans.

"It ought to scare liberals to come run and join conservatives, because what it means is when this president's out of the White House and you get a conservative in there, if this president has the authority under ObamaCare … to trample on religious rights, then some redneck president's got the right to say, 'you know what, there's some practices that go on in your house that cause people too much money and healthcare, so we're going to have the right to rule over those as well,'" Gohmert said during a press conference on Capitol Hill, in remarks captured by The Hill's Julian Pecquet.

On the first day of health care reform arguments before the Supreme Court, two justices needled a top Obama lawyer for simultaneously calling the fine that will be paid under the law for not purchasing insurance a "penalty" and a "tax."

The confusion arises because of the administration's argument that the power to enforce the individual mandate is rooted in Congress' taxing power -- but that the mechanism itself is designed to be a penalty, not a revenue-generating policy.

The narrow but important distinction created a communication challenge for the lawyer representing the Obama administration.

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The Supreme Court kicked off oral arguments over President Obama's health care law Monday by dedicating 90 minutes to the one issue on which the White House and the Republican challengers agree: The justices should hand down a speedy ruling on the constitutionality of the law this summer, rather than punt it to 2015 or beyond.

Lawyers for the Obama Justice Department and for the 26 Republican-led states challenging the law agreed that an old statute called the Anti-Injunction Act -- which forbids people from challenging taxes in court unless they've already been assessed by the government -- does not apply in this case. The Supreme Court enlisted outside counsel to make the opposite case.

The justices appeared broadly skeptical that the law's fine imposed on Americans who fail to carry health insurance qualifies as a "tax."

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Senate Majority Leader Harry Reid tells TPM he did not watch the Supreme Court health care arguments.

"No," said the Nevada Democrat, when asked Monday afternoon in the Capitol if he caught the morning's hearing. "We have lots of work to do here, and I think it would be a distraction."

The Senate leader added he's confident the court will uphold the mandate, which will enjoy 2 hours of arguments Tuesday morning.

Emerging from the chamber after sitting in on the first day of Supreme Court health care arguments, Sen. Richard Blumenthal (D-CT) told TPM that he believes the justices won't punt the case and will uphold President Obama's health reform law by this summer.

"I think they're going to decide the case and uphold the Affordable Care Act," the senator said in an interview. "I think the court clearly seems to be looking through legal labels to the common sense importance and impact of the case, and its effect on Americans in preventing insurance abuses."

TPM reported that the justices seemed convinced that they have standing to rule. Blumenthal agreed, pointing specifically to Justice Antonin Scalia's comment that it's unclear why the court is "deprived of jurisdiction."

"The importance of Justice Scalia's point that if it's not clearly jurisdictional, it doesn't have private court jurisdiction, and this statute is not a model of clarity [on the penalty-tax issue]," Blumenthal said. "That exchange, I think, was very important."