From The Washington Post:
Supreme Court turns to key constitutional issue in health-care law
The Supreme Court’s conservative justices appeared deeply skeptical that the Constitution gives Congress the power to compel Americans to either purchase health insurance or pay a penalty, as the court completed two hours of debate Tuesday on the key component of the nation’s health-care overhaul law.
Justice Anthony M. Kennedy, traditionally the justice most likely to side with the court’s liberals, suggested that the 2010 Patient Protection and Affordable Care Act invoked a power “beyond what our cases allow” the Congress to wield in regulating interstate commerce.
“Can you create commerce in order to regulate it?” he asked.
The arguments revealed a familiar alignment of the court. Its four liberal justices, appointed by Democratic presidents Bill Clinton and Barack Obama, supported the government’s argument. But one of the five conservatives appointed by Republican presidents Ronald Reagan, George H.W. Bush and George W. Bush would be needed to uphold the act, and all at some point resisted the government’s position. Their sharp questioning raised doubts about whether the individual insurance mandate could survive the Supreme Court’s historic review.
Kennedy and Chief Justice John G. Roberts Jr. would seem to hold the key to the court’s eventual decision, which likely will come near the end of the court’s term in June. But a caveat is appropriate: while the justices’ questions often foreshadow their decisions, that is not always the case, especially in cases with high stakes and constitutional questions.
The question of the limits of government power has animated the nation’s debate over the health-care law since it was passed by a Democratic Congress in 2010. The law, President Obama’s signature domestic initiative, has been roundly denounced by Republican officeholders and the candidates vying to run against him in the November presidential election.
U.S. Solicitor General Donald B. Verrilli Jr., representing the government, was the first to argue Tuesday, and he immediately found himself assailed by skeptical questions from some of the court’s conservatives. The lawyers for the parties challenging the law were scheduled to present their arguments after Verrilli.
“So if I’m in any market at all, my failure to purchase subjects me to regulation?” Justice Antonin Scalia wanted to know. The court’s longest-serving justice had been seen by some of the law’s proponents as a potential ally because of a past decision in which he said the Constitution’s Commerce Clause, which allows Congress to regulate interstate commerce, gave it power in cases involving the national economy.
But Scalia gave no indication that he was convinced by the government’s argument. He asked whether, if the individual mandate were upheld, the Congress could then compel people to buy broccoli or cars.
Roberts, too, had given the Obama administration faint hope. He wondered if the government could require everyone to buy cellphones, since that would facilitate the government’s system for providing fire and ambulance services in emergencies. He worried that if the court said requiring health-insurance purchases were constitutional because the health-care market was such a unique one — Verrilli repeatedly made that case, because no one can predict what services they will need and when — the government would simply come up with reasons that a different industry fit the bill.
“All bets are off,” he said.
Justice Samuel A. Alito Jr. brought up burial services. Aren’t people who don’t have burial insurance making a decision about how they are going to pay for their inevitable funeral? he asked. He characterized the underlying logic as “artificial.”
The conservatives raised familiar arguments that have become commonplace during the two years of national debate on the law: the potential for requiring people to purchase all sorts of things, from broccoli to gym memberships, that can be considered good for them.
Justice Stephen G. Breyer rose to the government’s defense.
If the United States had a burial insurance market equivalent to the extensive system of private and public insurance that it has for health care, perhaps it would not be inappropriate to require people to obtain burial plans, he said.
It was not the only moment the debate seemed to be among the justices rather than between them and Verrilli.
When Justice Ruth Bader Ginsburg observed that “the people who don’t participate in this market are making it much more expensive for those that do,” Scalia interjected,“You could say that about buying a car. If people don’t buy a car, the price [that car buyers] will pay will be more.”
Verrilli stuck to his theme: Unlike health care, nobody will give you a car if you fail to save for one.
In his brief, Verrilli argued that uninsured people account for at least $43 billion of uncompensated health-care costs each year and that much of that is passed on to people with coverage, adding about $1,000 a year to family insurance policies.
Still, Scalia and several other justices seemed unconvinced that Verrilli had articulated a principle by which Congress’s authority under the Constitution’s commerce clause could be limited.
“Government is supposed to be a government of limited powers,” he said. “What is left if the government can do this? What can it not do?”
Paul D. Clement, the former George W. Bush administration solicitor general representing 26 states challenging the law, picked up on that theme, saying the government was defending an “unprecedented” act by Congress with no limiting principle.
Ginsburg said she found it odd that all agree the system of taxing and payments that formed the Social Security system was constitutional, but that trying to use private insurance markets to handle a health-care crisis would be beyond Congress’s powers.
The Obama administration has argued that Congress has the authority to impose what it calls the “minimum coverage provision” under its power to regulate interstate commerce and its authority to solve national economic problems. The Patient Protection and Affordable Care Act requires that most Americans have health insurance by 2014 or pay a penalty on their 2015 income tax returns.
The individual insurance mandateoriginated in Republican circles and attracted prominent GOP backers, but many of those champions — including Republican presidential contenders — are now among the mandate’s leading critics.
The measure set off a blitz of legal challenges, and its opponents at the court are 26 states and a private business group, the National Federation of Independent Businesses. They argue that the government has exceeded its authority.
People who do not buy insurance are, by definition, not engaged in economic activity, they say. And they contend that there is no precedent for empowering Congress to essentially force otherwise inactive people to enter one of the markets that Congress can regulate.
The government counters that because virtually everyone will need health care, a person who chooses to forgo insurance isengaged in economic activity: They are effectively making an economic decision about how they will pay for their eventual health care — either by paying for it out of pocket, or by passing the costs on to hospitals, governments and, ultimately, other patients.
Congress certainly must have the ability to regulate health-care spending, which accounts for nearly 18 percent of the nation’s economy, or about $2.6 trillion a year, the government argues.
“As a class, the uninsured shift tens of billions of dollars of costs for the uncompensated care they receive to other market participants annually,” the government’s brief to the court said. “That cost shifting drives up insurance premiums, which, in turn, makes insurance unaffordable to even more people.”
The government also maintains that the mandate is a necessary component of the law’s new regulations on the insurance market — including its prohibition against insurers discriminating against people with preexisting health conditions.
Unless virtually everyone is required to obtain insurance, healthy people would have an incentive to take advantage of the new insurance rules by waiting until they are sick to buy insurance. This would skew the risk pool, forcing insurers to either pull out of the market or cover the additional cost by raising their rates to unsustainable heights.
The landmark case again drewdemonstrators to the sidewalk outside the Supreme Court on Tuesday, as supporters and opponents of the health-care law held dueling rallies. Accompanied by bongo drums and a small brass band, supporters sang, “We will win, when everybody’s in,” and chanted slogans such as “Protect the law” and “I love Obamacare.”
Opponents, including tea party backers, invited Rep. Michele Bachmann (R-Minn.), a former GOP presidential candidate, to their own rally.
“One lie after another was said to pass this bill,” Bachmann told opponents of the health-care law. “We are surrounded right now by those who will benefit from socialism,” she added, apparently referring to the nearby supporters of the law.