On Day 2, Supreme Court health care arguments center on mandate

McClatchy NewspapersMarch 27, 2012 

WASHINGTON — A clearly divided Supreme Court cast serious doubts on the Obama administration's signature health care law Tuesday, emboldening the Republicans who now are eagerly campaigning to kill it.

In a historic clash that foreshadows a close election-year decision, justices revealed sharp splits about whether Congress went too far in mandating that U.S. residents buy health insurance or pay a penalty. But while the justices appear as divided as the country itself, skepticism dominated during the unusually long oral arguments.

"The federal government is not supposed to be a government that has all powers," Justice Antonin Scalia said. "It's supposed to be a government of limited powers. ... If the government can do this, what else can it not do?"

Scalia sounded unrelievedly dubious about the health care law, as did his conservative colleague Justice Samuel Alito and, to a somewhat lesser extent, Chief Justice John Roberts.

In a potentially sobering sign for the Obama administration, even the justice most commonly considered to be a swing vote made pointed observations about the insurance-buying mandate.

"When you are changing the relationship of the individual to the government in this ... unique away, do you not have a heavy burden of justification to show authorization under the Constitution?" Justice Anthony Kennedy pressed the administration's chief lawyer, Solicitor General Donald Verrilli Jr.

Verrilli stressed throughout his hour at the lectern that the 40 million uninsured Americans posed what he called "an economic problem" that Congress is empowered to fix. He found some sympathy from at least a few justices, though they did not appear to be a majority of the nine-member court.

"People are getting cost-free health care, and the only way to avoid that is to get them to pay sooner rather than later, pay up front," Justice Ruth Bader Ginsburg said.

Justice Elena Kagan, Verrilli's predecessor as solicitor general, added that "the effect of all these uninsured people is to raise everybody's premiums," while Justice Stephen Breyer noted that "there is a national problem that involves money, cost (and) insurance."

The two-hour argument Tuesday morning was the second of three days devoted to challenges of the Obama administration's health-care law. By several measures, it also was the most important day.

Legally, the individual mandate that Florida and 25 other states are challenging is at the heart of the 2,700-page law that passed in 2010. The mandate's fate will shape future Congresses' ability to invoke the constitutional authority to tax or regulate commerce.

The individual mandate still sparks the most visceral response from opponents of the health care law. Republicans insist that they'll repeal the law, while tea party activists rallied outside the court Tuesday to show again the motivated muscle that helped the Republican Party reclaim control of the House of Representatives in 2010.

The Patient Protection and Affordable Care Act requires that taxpayers obtain a minimum level of health coverage by 2014. With some exceptions, those who don't must pay annual fees that start at $95 in 2015 and rise to $695 by 2016. Alternatively, the fee may be set as a percentage of household income.

"What matters here is whether Congress is choosing a tool that's reasonably adapted to the problem Congress is confronting," said Verrilli, adding that the law "addresses a fundamental and enduring problem in our health care system and in our economy."

The Constitution's Commerce Clause authorizes Congress to regulate commerce "among the several states." Since the New Deal era of the 1930s, this has justified many expansions of the federal government on the basis that the activity "substantially affects" commerce.

Unconvinced, conservatives pressed Verrilli for what limits might be imposed if Congress were permitted to impose the insurance mandate. Roberts asked about requiring cellphones to call emergency services, Alito asked about mandatory burial insurance, and Scalia asked about compulsory broccoli consumption.

"The mandate represents an unprecedented effort by Congress to compel individuals to enter commerce," agreed attorney Paul Clement, who's representing Florida and other states.

Inside the courtroom, a capacity crowd of 117 credentialed reporters observed the proceedings. Lawmakers such as Sen. John Cornyn, R-Texas, a bill opponent whose job is to get more Republican senators elected, and 85-year-old Rep. John Dingell, D-Mich., a prominent bill supporter, shared a row.

Outside, the politicians offered their opinions before, during and after the arguments. The Senate Judiciary Committee chairman, Sen. Patrick Leahy, D-Vt., came away insisting he heard a "clear-cut case" for upholding the law, while Florida Attorney General Pam Bondi, a bill opponent, sounded equally confident her side would win.

"We feel very pleased with the questions justices have been asking," Bondi said.

During a marathon and noisy news conference, unheard by the justices inside, opponents displayed "Don't Tread on Me" flags and denounced the law they dub Obamacare, while supporters marched, beat drums and shouted, trying to drown out the speakers.

"This is the day we have been waiting for," declared Rep. Michele Bachmann, R-Minn., a former Republican presidential contender. "This is one of the most important, consequential decisions that will come before this court."

Separately, Senate Republican Leader Mitch McConnell of Kentucky promised that if Republicans win a majority in November, "the first item on the agenda of the new Senate majority will be repeal of Obamacare." Realistically, the minority's filibuster power makes a total repeal unlikely even if Republicans gain control of the Senate. On Wednesday, the court will debate whether parts of the law can survive if one part is struck down.

Forty-one percent of U.S. residents surveyed this month have favorable views of the law and 40 percent have unfavorable views, the Kaiser Family Foundation found. The group's survey also found widespread ignorance about the law and the legal challenges to it.

On Wednesday, in addition to arguing about severing one part of the bill from the rest, the arguments will center on whether Congress went too far in directing the states to expand Medicaid coverage.

A decision in the case is expected by the end of June, when the court ends the term that began last October.

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