WASHINGTON - The Supreme Court's conservative justices appeared deeply critical Tuesday of the requirement that all Americans purchase health insurance, the constitutional issue at the core of the legal challenges to President Obama's landmark health care overhaul.
By Brendan Smialowski,, AFP/Getty Images
Supporters and opponents of health care overhaul measures demonstrate outside the Supreme Court in Washington on Tuesday.
By Brendan Smialowski,, AFP/Getty Images
Supporters and opponents of health care overhaul measures demonstrate outside the Supreme Court in Washington on Tuesday.
In the first hour of a two-hour hearing, the court's liberal justices were largely silent, but its four most conservative members expressed reservations that upholding the mandate could significantly alter the powers of the federal government. So did Justice Anthony Kennedy, often the court's swing vote.
Kennedy said Tuesday that the law "changes the relationship of the federal government to the individual in a very fundamental way," and he pressed the Obama administration's lawyer, Solicitor General Donald Verrilli, on why the insurance requirement wouldn't leave Congress with nearly limitless authority.
"When you are changing the relationship of the individual to the government, do you not have a unique obligation to show authorization under the Constitution?" he asked.
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The court's conservatives peppered Verrilli with questions about whether Congress could also force Americans to buy broccoli, burial insurance or cellular phones as part of commercial regulations down the road. Verilli said lawmakers couldn't do that, but the justices seemed unconvinced. "Once you're into interstate commerce and can regulate it, pretty much all bets are off," Chief Justice John Roberts said. Added Justice Antonin Scalia: "What is left? If the government can do this, what else can it not do?"
The insurance mandate is the single most controversial part of the two-year-old health care law. It has also raised significant questions about the scope of Congress' power to regulate the nation's economy and is at the core of the challenge by 26 states and a business consortium seeking to have the law overturned.
Opponents of the law are likely to need the votes of all of the court's conservatives to succeed in having overhaul declared unconstitutional.
The conservative justices also questioned whether Congress was regulating the health care market or just the market for insurance, and whether the government could force people to engage in commerce in order to regulate it. Roberts pressed Verrilli on why Congress would require that the coverage people buy might include services they will never need, such as substance abuse counseling or pediatric care.
Justices Ruth Bader Ginsburg and Sonia Sotomayor, two of the court's four more liberal members, questioned whether Congress could justify the mandate under its separate power to levy taxes.
Ginsburg asked whether the mandate was necessary to keep the uninsured from passing off the costs of their health care on others. "It's not your free choice just to do something for yourself. What you do is going to affect others, affect them in very negative ways," she said.
"You could say the same thing about not buying cars," Scalia replied.
Verrilli told the justices that the health care law "addresses a fundamental and enduring problem in our health care system," and that Congress has clear authority to regulate the marketplace for health services. He challenged the notion that upholding the law would broaden Congress' already expansive authority to regulate interstate commerce, saying the health care market is unique.
The hearing continues with arguments by lawyers for the main parties challenging the law.
Congress passed the insurance mandate to control costs. The new health law bans insurers from discriminating against people with pre-existing conditions or high medical costs, either by denying coverage or inflating premiums. For insurers to do that without raising rates on everyone, they need more people buying insurance.
The argument in favor of the mandate is equally clear: Health care is one of the largest sectors of the nation's economy, and millions of Americans without insurance - including those who can't afford it and others who are health but risk catastrophic illnesses for which they cannot pay - pass their costs on to the government, businesses and other Americans. That, the Obama administration has argued, puts the mandate squarely within the Congress' constitutional power to regulate interstate commerce.
The administration is also urging the justices to conclude that the penalty for not purchasing insurance is separately authorized by Congress' power to levy taxes.
Opponents, however, say such a mandate is unprecedented. They argue that even if Congress has wide latitude to regulate commerce, it cannot force people to enter the marketplace for health insurance if they don't want to. And they have warned that upholding the mandate would effectively erase constitutional limits on Congress' power. If this law is constitutional, they argue, so is one requiring Americans to buy broccoli.
With few exceptions, the Supreme Court has concluded in the past the Constitution's Commerce Clause and Necessary and Proper Clause give Congress wide latitude for regulating issues that have a "substantial effect" on interstate commerce.
The case most often cited, Wickard v. Filburn, is from 1942, when the Supreme Court ruled Congress could fine a farmer for growing too much wheat, even if it was for personal consumption, because such home consumption impacted the interstate market. More recently, the court has relied on those powers to uphold laws that outlaw marijuana and to allow for the indefinite detention of sexual predators, though it has also overturned laws banning guns near schools and giving gender violence victims the right to sue in federal court.
The lower courts have rendered a split decision, though more have upheld the law. Federal district courts in Virginia and Florida declared the mandate unconstitutional, as did the 11th Circuit Court of Appeals in Atlanta.
