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.
Comments
Post a Comment