Several US Supreme Court justices questioned the constitutionality of the requirement in President Barack Obama’s health-care law that Americans acquire insurance or pay a penalty.
“The federal government is not supposed to be a government that has all powers,” Justice Antonin Scalia said early in today’s two-hour argument on Obama’s signature legislative victory. “It’s supposed to be a government of limited powers.”
Justice Anthony Kennedy said the requirement to obtain health coverage is telling individuals they “must act.” Kennedy, who most often occupies the court’s ideological middle ground, said, “That changes the relationship of the government to the individual in a fundamental way.”
“Do you not have a heavy burden” to show the law is authorized by the Constitution, Kennedy asked US Solicitor General Donald Verrilli, who argued in the law’s defence.
Today’s session is the second of three days of Supreme Court hearings on Obama’s health-care law. Twenty-six states say Congress exceeded its authority in approving the 2010 law, which would extend insurance to 32 million people and revamp an industry that accounts for 18 per cent of the US economy.
The court probably will rule in late June.
Presidential Campaign
The historic court challenge is central to the Republican campaign to take over the White House. The last time the court rejected a measure with such sweeping impact was when it voided parts of Franklin D. Roosevelt’s New Deal, the package of economic programs in the 1930s passed in response to the Great Depression.
The justices’ early questions were directed toward Verrilli, the Obama administration’s top Supreme Court lawyer. Attorneys for states and a business trade group challenging the law are following his arguments in the session.
Verrilli contended that Congress can require people to buy insurance under its constitutional power to regulate the interstate health-care market.
People who don’t buy health insurance and can’t afford to pay for care themselves are guaranteed emergency-room treatment when they need it, Verrilli said. People who have insurance are subsidizing them, he said.
Justice Sonia Sotomayor suggested the government can require people to buy insurance ahead of time “because you can’t buy it at the moment you need it.”
Food, Burial Insurance
The justices questioned Verrilli on whether Congress could force people to buy things such as food or burial insurance.
“Can the government require you to buy a cell phone” because someone may need to call for emergency fire or police help, asked Chief Justice John Roberts. The law requires people to buy insurance for health-care services they may not need, such as newborn and maternity care or substance-use treatment, he said.
The requirement to buy insurance forces young people, who may need little health care, to subsidize care “that will be received by somebody else,” said Justice Samuel Alito.
“That’s how insurance works,” said Justice Ruth Bader Ginsburg. Later, she said, “People who don’t participate in this market are making it more expensive for those who do.”
During yesterday’s opening session, several justices suggested they will reject an argument that they can’t consider the case until the penalty is imposed in 2015.
Romney, Santorum
Obama’s Republican challengers all oppose the measure and say they want to undo it. Former Pennsylvania Senator Rick Santorum appeared outside the court yesterday and attacked Mitt Romney, who signed a similar state law when he was governor of Massachusetts. Romney is the “worst person” to debate the health law with Obama, Santorum said.
The six hours of arguments spread over three days are the most the court has heard in a case in 44 years.
Tomorrow, the last day, the justices will consider what should happen to the rest of the law if they invalidate the insurance requirement. The court also will take up whether the law, by expanding the Medicaid program, unconstitutionally coerces states into spending more on health care for the poor.
The fate of the insurance requirement will turn partly on the court’s interpretation of the constitutional provision that lets Congress regulate interstate commerce. Justices’ opinions in previous cases only hint at how they may apply it to the insurance requirement.
Interstate Market
The government says that every American is already part of the interstate market for health care and that the mandate requires them to get coverage to pay for treatment they’ll eventually need. The challengers say Americans who fail to buy insurance can’t be regulated because they aren’t engaged in commerce. Congress has never before required people to purchase something, they say.
Upholding the mandate, opponents say, would mean Congress could force consumers to buy any product for the sake of stimulating the economy. Instead of providing cash incentives to buy new cars and boost the auto industry, as the government did in 2009, Congress could have required everyone above a certain income level to buy a new car, they say.
The Obama administration and its allies say the auto and health-care industries aren’t the same. Uninsured people consumed $118 billion in health-care services in 2008 and paid only 37 percent of those costs, the administration says. Those costs are passed from care providers to insurers to policyholders, ultimately increasing the average premium for insured families by $1,000 a year, the government says.
The government also says the individual mandate will keep policy premiums in check by giving insurers millions of new, low-cost customers. Otherwise, prices would soar because the law also requires insurers to accept applicants with pre-existing conditions and charge them the same rates as other policyholders, the government says.
Of the four federal appeals courts to rule on the health- care law, two upheld it, one declared the insurance mandate unconstitutional and the fourth said the Anti-Injunction Act made a judicial review premature.
