Conservative justices ask tough questions on individual mandate

Conservative justices expressed fears Tuesday that forcing Americans to buy health insurance would open the door to other intrusive requirements from the federal government.

On the second day of oral arguments over President Barack Obama’s landmark health law, the Supreme Court grappled with the linchpin of the legislation — the individual mandate.

Critics of the law argue that if the U.S. government can require Americans to buy medical insurance, it could require virtually anything else that might improve health or lower health care costs, like forcing Americans to join a gym or buy broccoli.

A potential swing vote on the court, Justice Anthony Kennedy, turned to that point early in Tuesday’s session, asking Solicitor General Donald Verrilli Jr. if the government could require purchase of certain food, The Wall Street Journal reported.

Verrilli was also asked if the government could require the purchase of cellular phones or burial insurance, early news reports said.

“The federal government is not supposed to be a government that has all powers,” Justice Antonin Scalia said, according to Bloomberg News. “It’s supposed to be a government of limited powers.”

The aggressive questioning from conservative justices led Tom Goldstein, the publisher of SCOTUSblog and a prominent Supreme Court litigator, to declare that “there is no fifth vote yet” for the mandate.

“The individual mandate is in trouble—significant trouble,” he wrote in an update from the court, while warning that the first half of an argument session can often seem one-sided. “The conservatives all express skepticism, some significant.”

During the early questioning, at least three of of the liberal justices, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, challenged the conservative wing, according to news reports.

Ginsburg argued that forcing people to buy food is different than requiring them to purchase insurance, citing a friend-of-the-court briefing that uncompensated care leads to higher costs for all consumers, the Journal reported. Uninsured people are passing their costs on to others, and that’s why Congress can regulate them, Ginsburg suggested, according to the Journal.

At stake in Tuesday’s arguments is not just the individual mandate but the potential resolution to a bitter political fight between Democrats and Republicans over the limits of government power when it comes to health care. It also will mean vindication or defeat for Obama, who staked his presidency on muscling a massive health care overhaul through Congress on a partisan vote.

The court scheduled two hours of arguments on the mandate alone, the second of three days of hearings in what is being viewed as the most consequential case since Bush v. Gore in 2000. The tone of the questions provided the first glimpse of how the court might rule on the heart of the health care law.

The government presented its case first during Tuesday’s hearing.

The public has never broadly approved of the mandate requiring Americans to carry insurance by 2014 or face a penalty. Even Obama opposed the mandate during his presidential run. If the court upholds the requirement as constitutional, voters still aren’t likely to warm to it overnight.

But the administration wants the Supreme Court’s stamp of approval because it will mean Obama’s signature legislative achievement is constitutionally sound. And it would avoid a chain reaction of other problems that could happen with other parts of the law if the court pulls the mandate out.

The law’s challengers, which includes 26 states and the National Federation of Independent Business, view the mandate as an unprecedented, unconstitutional overreach by the Obama administration.

“This is the day we have been waiting for,” Rep. Michele Bachmann (R-Minn.) said Tuesday outside the courthouse, as supporters of the law shouted over her.

If the justices uphold the law — and many legal experts cautiously predict they will — Democrats will frame it as the definitive end to the health care reform controversy. Obama and his allies will urge the states to move forward with implementing the law and encourage Republicans to stop complaining about the legislation.

Yet, a ruling upholding the law could energize the Republican base in the November elections. Congressional Republicans are hoping to tap into the emotional argument against the mandate: It puts the government in charge of their health care and, for the first time, allows Congress to require Americans to purchase something.

“Obamacare is a cancer in our government, and we’re going to rip it out,” said Jenny Beth Martin, co-founder of the Tea Party Patriots, which held a press conference outside the courthouse Tuesday.

A recent poll from the Kaiser Family Foundation found that about two-thirds of Americans oppose the individual mandate. It continually ranks among the least popular pieces of the health care law.

If the court strikes down the individual mandate, the justices will have to decide how much more of the law to take down with it. The court has set 90 minutes of argument Wednesday on that issue, known in legalese as “severability.”

The administration has argued that most of the law should stand even if the mandate falls but that two closely related provisions would have to go: one forcing insurers to cover people with pre-existing conditions and another banning health plans from charging higher premiums to people with health problems.

Opponents of the law say the court should throw out the entire Affordable Care Act, start to finish, if the mandate is struck down. They persuaded one federal judge in Florida to take that approach, but other judges have declined to be so bold.

Though neither side requested it, the justices invited D.C. lawyer Bartow Farr to argue that the mandate alone could be struck down — which could leave Congress figuring out how to repair the nearly-3,000 page bill.


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