Bruning says the challenge of the 2010 law appears stronger now.
“I thought the federal government had a very bad day, today,” Bruning tells Nebraska reporters during a conference call from Washington, D.C. “They understood that this is a very difficult proposition to defend.”
Nebraska is among the 26 states challenging the constitutionality of that position: that virtually all Americans must purchase health insurance or face a federal penalty.
Bruning considers the mandate provision the key to the entire case. The Supreme Court has set aside three days to hear oral arguments on the constitutionality of Patient Protection and Affordable Care Act, passed by Congress and signed into law by President Obama in 2010. This morning, the court heard arguments on the mandate. Congress included the mandate to make the law more financially viable, arguing that it had the authority to do so under the Commerce Clause. The states argue Congress exceeded its authority and cannot force citizens to purchase a product.
Bruning expects a 5-4 split among the justices, which he hopes will strike down the mandate and, eventually, the entire law. He says he was thrilled to hear Justice Anthony Kennedy express skepticism that the federal government could require someone to participate in the plan.
“Well, my impression today when I walked out of court, is I feel a lot better than when I walked in,” according to Bruning. “All eyes were on Justice Kennedy. Justice Kennedy seemed very, very skeptical of the government’s argument that the mandate was no unconstitutional and too much power for Congress to exercise under the Commerce Clause.”
Kennedy is considered a swing vote between the court’s tradition conservative and liberal wings.
“I think the most important take away I came away with today is that Justice Kennedy is skeptical about the mandate,” Bruning says. “And that’s in keeping with his previous jurisprudence. He is somebody who believes there has to be limits on the Commerce Clause.”
The court returns for a third and final day of oral arguments tomorrow, when it will hear arguments about whether the law can survive if the mandate is struck down and what effect the law will have on state Medicaid budgets.
AUDIO: Attorney General Jon Bruning speaks with reporters about day two of oral arguments [4:40]
Click here for link to audio of U.S. Supreme Court oral arguments.
Click here for briefs and other materials regarding the case.