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

Conservatives emerged from Tuesday arguments with an air of confidence that the Supreme Court will hand them a victory and strike down the heart of "Obamacare," emboldened by the fact that swing Justices John Roberts and Anthony Kennedy sounded far from convinced that the law's requirement to buy insurance passes constitutional muster.

Forecasting the individual mandate's "imminent demise," The Washington Examiner's Conn Carroll declared Tuesday, "Today's oral argument makes it sound like the five conservative justice will find that there are limits to congressional power." Other conservatives were equally hopeful.

They might be getting punk'd.

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Sen. John Kerry (D-MA) said Wednesday that the comparisons between the Affordable Care Act and eating broccoli -- which Justice Antonin Scalia invoked Tuesday -- don't hold up.

"It isn't about eating broccoli, folks," Kerry told reporters. "There's no other economic commodity in the entire marketplace like health care. Like it or not, at some point in our lives, every single person will receive health care."

Standing between the Capitol and in front of the Supreme Court during Wednesday's oral arguments, he made the case for the law's constitutionality.

"Congress's power to regulate interstate commerce is certainly broad enough to encompass the way the law was written," Kerry said. "The Supreme Court has interpreted this power to mean ... if the economic activity being regulated, taken in the aggregate, has a substantial effect on interstate commerce, it's permissible."

The Obama administration's top legal advocate was pilloried Tuesday for offering a less-than-eloquent constitutional defense of the health care reform law's individual mandate -- the provision at the heart of the challenge to "Obamacare." Thankfully for supporters of the law, some of the sharpest legal minds in the country unintentionally articulated his case better than he did -- the justices themselves. Liberal-leaning justices on the court each stepped in at various points to suggest arguments for the mandate's legitimacy.

Here are the four best arguments they made -- or at least hinted at -- that could sway their skeptical colleagues.

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Adam Winkler, a constitutional law professor at UCLA who has been following the health care case, weighed in after Tuesday's oral arguments on the individual mandate.

He writes in an email to TPM:

There were few surprises in the oral argument today. The liberal justices expressed their comfort with the mandate and the conservatives expressed skepticism. Kennedy gave the audience mixed signals, obscuring how he'll rule. The only people who were surprised were the pundits who predicted Scalia's vote would be in play. Instead, Scalia was vigorous in his questioning of the government. When the ACA was passed, I predicted that precedent wouldn't decide this case, and today the Justices didn't seem overly concerned with past decisions.

Winkler's take on how the case will turn out?

It's too close to call.

Chief Justice John Roberts and Justice Anthony Kennedy -- two critical swing votes in the health care reform case before the Supreme Court -- asked skeptical questions about the individual mandate Tuesday, but rounded out the arguments with some sympathy for the federal government's broad power to regulate health insurance.

With reform supporters battered by early analysis suggesting the court's conservatives were hostile to the health care law's requirement that Americans purchase health insurance, Roberts' and Kennedy's more balanced questions renewed hope that the law will be upheld.

Indeed, with the four justices comprising the court's liberal wing likely to uphold the mandate, the outcome seems destined to hinge on Kennedy and Roberts. And though the two conservatives didn't fully betray their leanings, the Obama administration and supporters of health care reform almost certainly only need one of their votes to prevail.

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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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