WASHINGTON (Legal Newsline) - Reaction to day two of oral arguments over President Barack Obama's health care reform centered on Justice Anthony Kennedy's perceived skepticism of its constitutionality.

Tuesday, the justices heard arguments over the law's requirement that individuals who do not purchase health insurance must pay an annual $695 penalty. Twenty-six states challenged the mandate in a federal court in Florida, and the U.S. Court of Appeals for the 11th Circuit ruled it unconstitutional.

Kennedy is one of five justices appointed by a Republican. Lyle Denniston, who has reported on the U.S. Supreme Court for more than 50 years, wrote on SCOTUSblog that Kennedy will probably cast the swing vote.

"If Justice Anthony M. Kennedy can locate a limiting principle in the federal government's defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive," Denniston wrote.

"If he does, he may take Chief Justice John G. Roberts, Jr., and a majority along with him. But if he does not, the mandate is gone."

During arguments, Kennedy said the government has a "very heavy burden of justification" to show that Congress is allowed to change "the relationship between the individual and the government in a very fundamental way."

He also asked Obama administration lawyer Donald Verrilli if Congress can create commerce in order to regulate it.

Jay Sekulow, the chief counsel of the American Center for Law and Justice, said he was encouraged with Kennedy's participation.

"The questions raised by Justice Kennedy indicate a growing concern about the constitutionality of the individual mandate," Sekulow said. "While you can never predict the outcome of a Supreme Court case based on oral arguments, it is very encouraging that it appears a majority of the Justices understand that requiring Americans to purchase health insurance raises significant constitutional questions."

After arguments concluded, Utah Chief Deputy Attorney General John Swallow predicted on Twitter a 5-4 win for those challenging the law. Swallow is vying to replace current AG Mark Shurtleff.

Florida Attorney General Pam Bondi released a statement in which she also said she was encouraged by the justices' questions -- "especially the ones that exposed the federal government's inability to identify any meaningful limits on Congress' power."

Texas Attorney General Greg Abbott also took to Twitter, posting twice about Kennedy. He wrote:

-"Kennedy worried that if #Obamacare upheld there may be no limits on the commerce clause. #txlege;" and

-"Kennedy said #Obamacare changes the historic relationship between gov't and individuals. #txlege."

Kevin Glass, the managing editor of, tweeted a link to a story on his site that argues Kennedy's mind doesn't appear made up, despite reaction to the contrary.

"But one hour and fifty-two minutes into the hearing, Justice Anthony Kennedy deigned to speak again, and his question changed, at the very least, this reporter's mind about his potential ruling," Kate Hicks wrote.

"He said he found that the 'young person who is uninsured' is 'uniquely close to participating' in the health insurance market. Translation: I could justify the individual mandate."

From Legal Newsline: Reach John O'Brien by e-mail at

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