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From The Washington Post:
Supreme Court expresses doubts on key constitutional issue in health-care law
Video: During the second day of arguments, Justice Anthony M. Kennedy suggests to the solicitor general that the government needs to justify its position that it is within congressional powers to require individuals to buy health insurance.
“Can you create commerce in order to regulate it?” Kennedy asked.
Justice Antonin Scalia, considered a possible ally by some of the law’s supporters because of a past vote on the commerce clause’s authority, seemed to dash those hopes quickly.
Key Coverage
Is Obamacare in trouble?
WONKBLOG | The quick read is that today's oral arguments went very badly for supporters of the individual mandate.
Can White House win on health care?
THE FIX | What makes the Obama campaign believe they can win on an issue that cost them so much in the 2010 election?
'Supposed to be ... limited powers'
AUDIO | Supreme Court Justice Antonin Scalia questions whether the individual mandate is both "necessary and proper."
Health Care Challenge
View the latest news, opinion and multimedia on legal challenges to the Affordable Care Act.
Make Your Case
How should court rule on individual mandate?
Tell us what you think of the individual mandate by making your case here, then vote for the best arguments of your peers.
Supreme Court Hearings
A guide to health-care law challenges by day:
MONDAY | Is it premature for the Supreme Court to rule on the challenge to the law's insurance requirement?View story »
10 AM WEDNESDAY | If the insurance requirement is ruled unconstitutional, should the rest of the health care law stand? View details »
1 PM WEDNESDAY | Is the law's expansion of Medicaid to cover a greater share of the poor constitutional?View details »
“The federal government is not supposed to be a government that has all powers,” he said. “If the government can do this . . . what else can it not do?”
Justice Samuel A. Alito Jr. said that under Verrilli’s theory — that the government can require the purchase of health insurance because everyone, at some point, will need health care — the government could also mandate burial insurance, since everyone will die.
Justice Clarence Thomas, who maintained his policy of not asking questions at the argument, has spent two decades on the court ruling that the commerce clause gives the government less power than other justices have recognized.
There were other troubling signs for supporters of the law. When Verrilli said the government’s argument concerned only insurance, Roberts said that was not reassuring. If the court approves that, he said, “all bets are off, and you could regulate that market in any rational way.”
Kennedy worried that the law could mark a significant shift in the government’s power over personal liberty.
“When you are changing the relation of the individual to the government in this . . . unique way, do you not have a heavy burden of justification to show authorization under the Constitution?” he asked.
Conservative justices repeatedly asked about the limits of the government’s power, using now-familiar examples of forcing the purchase of broccoli, or of cars to help struggling auto companies.
Verrilli, seemingly unwilling to tie the hands of future lawmakers, repeatedly answered such questions by referring to the uniqueness of the health-care market.
Liberal justices seemed to think that Congress was well within its powers in trying to reform a system in which uninsured people are raising costs for others. Those people do engage in commerce, Justice Ruth Bader Ginsburg said, when they show up for treatment that cannot be denied.
“I thought what was unique about this is it’s not my choice whether I want to buy a product to keep me healthy, but the cost that I am forcing on other people if I don’t buy the product sooner rather than later,” she said.
Justice Stephen G. Breyer said the answer to Alito’s question might be that if the United States had a burial insurance market equivalent to its extensive system of private and public insurance for health care, perhaps it would not be inappropriate to require people to obtain burial plans.
Paul Clement, former solicitor general for President George W. Bush and the lawyer for Florida and 25 other states objecting to the law, said the legislation is unprecedented and has no limiting principle.
“The commerce clause gives Congress the power to regulate existing commerce,” Clement said. “It does not give Congress the far greater power to compel people to enter commerce to create commerce essentially in the first place.”
It was in the questioning of Clement and Michael Carvin, representing the National Federation of Independent Business, that supporters of the law saw a glimmer of hope.
Roberts told Carvin that he was not addressing the government’s point, “which is that they are not creating commerce in health care. It’s already there, and we are all going to need some kind of health care; most of us will at some point.”
And Kennedy said the government might be right that the interwoven markets of health insurance and health care are unique.
“The young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries,” he said. “That’s my concern in the case.”
Oral arguments are often a good barometer of an outcome, but they can sometimes be misleading in cases of great import with complicated constitutional questions. Several years ago, for instance, oral arguments in a case about a key provision of the Voting Rights Act seemed to indicate that it was doomed. Instead, the justices found a narrow way out and avoided the constitutional controversy.
“Can you create commerce in order to regulate it?” Kennedy asked.
Justice Antonin Scalia, considered a possible ally by some of the law’s supporters because of a past vote on the commerce clause’s authority, seemed to dash those hopes quickly.
Key Coverage
Is Obamacare in trouble?
WONKBLOG | The quick read is that today's oral arguments went very badly for supporters of the individual mandate.
Can White House win on health care?
THE FIX | What makes the Obama campaign believe they can win on an issue that cost them so much in the 2010 election?
'Supposed to be ... limited powers'
AUDIO | Supreme Court Justice Antonin Scalia questions whether the individual mandate is both "necessary and proper."
Health Care Challenge
View the latest news, opinion and multimedia on legal challenges to the Affordable Care Act.
Make Your Case
How should court rule on individual mandate?
Tell us what you think of the individual mandate by making your case here, then vote for the best arguments of your peers.
Supreme Court Hearings
A guide to health-care law challenges by day:
MONDAY | Is it premature for the Supreme Court to rule on the challenge to the law's insurance requirement?View story »
10 AM WEDNESDAY | If the insurance requirement is ruled unconstitutional, should the rest of the health care law stand? View details »
1 PM WEDNESDAY | Is the law's expansion of Medicaid to cover a greater share of the poor constitutional?View details »
“The federal government is not supposed to be a government that has all powers,” he said. “If the government can do this . . . what else can it not do?”
Justice Samuel A. Alito Jr. said that under Verrilli’s theory — that the government can require the purchase of health insurance because everyone, at some point, will need health care — the government could also mandate burial insurance, since everyone will die.
Justice Clarence Thomas, who maintained his policy of not asking questions at the argument, has spent two decades on the court ruling that the commerce clause gives the government less power than other justices have recognized.
There were other troubling signs for supporters of the law. When Verrilli said the government’s argument concerned only insurance, Roberts said that was not reassuring. If the court approves that, he said, “all bets are off, and you could regulate that market in any rational way.”
Kennedy worried that the law could mark a significant shift in the government’s power over personal liberty.
“When you are changing the relation of the individual to the government in this . . . unique way, do you not have a heavy burden of justification to show authorization under the Constitution?” he asked.
Conservative justices repeatedly asked about the limits of the government’s power, using now-familiar examples of forcing the purchase of broccoli, or of cars to help struggling auto companies.
Verrilli, seemingly unwilling to tie the hands of future lawmakers, repeatedly answered such questions by referring to the uniqueness of the health-care market.
Liberal justices seemed to think that Congress was well within its powers in trying to reform a system in which uninsured people are raising costs for others. Those people do engage in commerce, Justice Ruth Bader Ginsburg said, when they show up for treatment that cannot be denied.
“I thought what was unique about this is it’s not my choice whether I want to buy a product to keep me healthy, but the cost that I am forcing on other people if I don’t buy the product sooner rather than later,” she said.
Justice Stephen G. Breyer said the answer to Alito’s question might be that if the United States had a burial insurance market equivalent to its extensive system of private and public insurance for health care, perhaps it would not be inappropriate to require people to obtain burial plans.
Paul Clement, former solicitor general for President George W. Bush and the lawyer for Florida and 25 other states objecting to the law, said the legislation is unprecedented and has no limiting principle.
“The commerce clause gives Congress the power to regulate existing commerce,” Clement said. “It does not give Congress the far greater power to compel people to enter commerce to create commerce essentially in the first place.”
It was in the questioning of Clement and Michael Carvin, representing the National Federation of Independent Business, that supporters of the law saw a glimmer of hope.
Roberts told Carvin that he was not addressing the government’s point, “which is that they are not creating commerce in health care. It’s already there, and we are all going to need some kind of health care; most of us will at some point.”
And Kennedy said the government might be right that the interwoven markets of health insurance and health care are unique.
“The young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries,” he said. “That’s my concern in the case.”
Oral arguments are often a good barometer of an outcome, but they can sometimes be misleading in cases of great import with complicated constitutional questions. Several years ago, for instance, oral arguments in a case about a key provision of the Voting Rights Act seemed to indicate that it was doomed. Instead, the justices found a narrow way out and avoided the constitutional controversy.
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