As an attorney who has argued a number of appellate cases, I can testify that judges' questions during oral arguments are not necessarily a good predictor of the outcome of a case. Judges often use oral argument as a sounding board for competing jurisprudential theories and as a vehicle for playing devil's advocate. The questions asked don't necessarily telegraph how the judges are feeling about the case, or the way they will ultimately rule. Still, the questions posed by the Supreme Court during last week's argument on the Affordable Care Act, a.k.a "Obamacare," indicate that the court is pondering not just the future of health care in this country, but also the role of the federal government in the lives of its citizens.
The heart of Obamacare is the so-called individual mandate, which requires that citizens purchase health insurance or pay a penalty. The goal of the legislation is to induce full participation in the program in order to ensure its fiscal solvency (premiums from young, healthy individuals are necessary to offset the costly medical bills of the sick and elderly) and eliminate "free riders," (those uninsured individuals whose health care costs are borne by those who do have health insurance). This approach, we are told, will result in low-cost, high-quality healthcare for all.
Makes sense, right? Who could possibly object to a program that promises to right the many perceived wrongs of healthcare in America? Who would argue against securing affordable, accessible health care for the millions upon millions (or so we're told) of "involuntarily" uninsured Americans? At first blush the mandate seems like a commonsense, compassionate approach, until you consider the broader legal implications of the government's actions.