In a surprise outcome, a provision to expand Medicaid access to the poor appears to be on shaky constitutional grounds, according to the line of questioning by some Supreme Court justices today. The high court just finished hearing the plaintiff's argument that Obamacare's Medicaid expansion is unconstitutional, an argument few legal observers thought would gain much traction. It turns out, more conservative justices appeared troubled by the expansion than most expected. 

The Los Angeles Times reports that swing-vote Anthony Kennedy "effectively" accepted the argument by the 26 states challenging Obamacare, that states have "no realistic choices" regarding being forced to expand Medicaid. Additionally, "Chief Justice John G. Roberts, Jr. and Justices Antonin Scalia and Samuel A. Alito, Jr. echoed Kennedy’s concerns, signaling their willingness to invalidate yet another part of the healthcare overhaul Obama signed two years ago," reported the paper.

Most observers think the Medicaid expansion still has a much better chance of being upheld than the individual mandate but they were surprised that the expansion was threatened at all. "It was impossible to determine whether a clear majority of Supreme Court justices were leaning toward a particular ruling," wrote Talking Points Memo's Brian Beutler, " But many legal scholars were shocked that the Court even agreed to hear this challenge. And the consequences of an adverse ruling would be so tectonic for the federalist system that the ambiguity of the conservative justice's opinions is worth noting and taking seriously."

Still, a number of observers said the Obama administration had a much better day today than yesterday. The New Yorker's Jeffrey Toobin, who's been describing past hearings as a series of catastrophes for the Obama administration, said "finally a decent hour for @barackobama on medicaid expansion." Earlier in the hearing, The Washington Examiner's conservative columnist Philip Klein also believed the expansion would be upheld. "I'd be surprised if they struck down Medicaid expansion." 

That was largely thanks to a sharp push back from the liberal justices against the states. "Justice Elena Kagan pounded Paul Clement, the attorney for the states, with questions about whether the Medicaid expansion is really an unreasonable demand for the states — especially when the federal government will pick up all of the costs in the early years and most of the costs in the later years," reported Politico. Kagan asked Clement “Why is a big gift from the federal government a matter of coercion? It’s just a boatload of federal money [to help] poor people.”

However, in an analysis on SCOTUS blog, Lyle Denniston said there's a real threat of the expansion being overturned. "Unless a closing oration by a top government lawyer stirs some real sympathy for the poor, the new health care law’s broad expansion of the Medicaid program that serves the needy may be sacrificed to a historic expression of judicial sympathy for states’ rights."