Conservative Justices Question Reform Law's Individual Mandate

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On the second day of oral arguments in the Supreme Court case against the federal health reform law, the conservative justices appeared skeptical of Congress' power to mandate that U.S. residents purchase health coverage, the Los Angeles Times reports.

Meanwhile, the court's liberal justices weighed in numerous times to further the government's argument that it has the power to compel citizens to purchase coverage (Savage/Levey, Los Angeles Times, 3/27).

The Supreme Court has posted audio transcripts and a written transcript of Monday's proceedings on its website.

Federal Government's Argument

U.S. Solicitor General Donald Verrilli, who is representing the federal government, faced "skeptical, rapid-fire questions" from the court's conservative justices for almost one hour, according to Wall Street Journal's "Washington Wire."

According to "Washington Wire," Verrilli's stock answer about the individual mandate has been to argue it is about market regulation, noting that nearly all U.S. residents are, or will be, part of the health care market at some time, and insurance is the way to cover the cost of their care.

The question of how far the government can go is one that federal lawyers have struggled with through the lower courts, and Verrilli on Tuesday again had difficulty answering it.

Near the end of his argument, Verrilli shifted his defense to argue that the mandate is permissible under the government's authority to impose taxes.

However, that argument "ran into resistance," according to "Washington Wire." Even Justice Elena Kagan noted the Congress' "determined efforts" not to label the penalty for failing to purchase coverage as a tax (Kendall/Radnofsky, "Washington Wire," Wall Street Journal, 3/27).

Justice Antonin Scalia asked, "The president said it wasn't a tax, didn't he?" Scalia also challenged Congress' power to enact the individual mandate. "The federal government is not supposed to be a government that has all powers," he said, adding, "It's supposed to be a government of limited powers" (Asseo/Stohr, Bloomberg, 3/27).

Conservatives Return to 'Broccoli Mandate' Argument

Conservatives justices questioned Verrilli "over and over again" about how far the government can go to force U.S. residents to purchase goods, "Washington Wire" reports.

Chief Justice John Roberts compared health insurance to fire and police services, which he said people do not know they need until something happens, and asked whether the government can force individuals to purchase cell phones to dial 911. He also pressed Verrilli on whether food and cars are means to an end and no different from insurance.

Roberts said it might be hard for the government to set limits if the court approves the individual mandate. "All bets are off," he said.

Questions From Likely Swing Vote Kennedy

Justice Anthony Kennedy -- a possible swing vote in the case -- noted that Verrilli faces a "very heavy burden of justification" to show that the Constitution permits Congress to force residents to purchase health coverage ("Washington Wire," Wall Street Journal, 3/27).

Kennedy characterized the coverage requirement as telling U.S. residents that they "must act," noting, "That changes the relationship of the government to the individual in a fundamental way" (Bloomberg, 3/27).

Liberal Justices Appear To Defend Verrilli

The court's more liberal justices came to the defense of Verrilli on a number of occasions, "Washington Wire" reports.

For instance, Justice Ruth Bader Ginsburg pointed to an amicus brief showing that showed uncompensated care in Maryland has increased consumers' costs by 7%. Because the uninsured are passing on their health care costs to the insured, the federal government can regulate them, she suggested ("Washington Wire," Wall Street Journal, 3/27).

Justice Sonia Sotomayor suggested that the government can force U.S. residents to purchase insurance prior to needing it "because you can't buy it at the moment you need it" (Bloomberg, 3/27).

Kagan -- after Alito noted that the coverage requirement is unfair to young, healthy individuals -- called young people "the subsidizers," who in turn will be subsidized when they get older ("Washington Wire," Wall Street Journal, 3/27).

Conservatives Have Few Questions for Plaintiffs' Lawyer

During his oral arguments, Paul Clement -- the lead attorney for the plaintiffs -- faced fewer "pressing" questions from conservative justices than Verrilli, "SCOTUSblog" reports (Goldstein, "SCOTUSblog," 3/27).

Clement argued that the individual mandate "represents an unprecedented effort" to require citizens to enter into commerce and that the government has not presented any limits to that power. Clement reiterated the notion that if the government can force individuals to purchase insurance, it could force them to purchase anything.

Roberts at one point made comments that appeared to support the government's position. He said that the key to the government's argument is that everyone is in the health care market, which differentiates health care from other products. He added that the government is attempting to regulate how health care is paid for. Clement objected to Roberts' point, stating that some U.S. residents do not consume health care or purchase insurance.

Meanwhile, Kennedy -- who earlier was critical of the government's arguments -- noted that young, healthy people are not beyond regulatory consideration because they are "an actuarial reality who can and must be measured."

However, Scalia and Alito did not waiver from their earlier criticism of the government's position, suggesting that it might be difficult for the defendants to garner their support on the individual mandate ("Washington Wire," Wall Street Journal, 3/27).

Wednesday's Arguments

Wednesday is the last day of oral arguments in the case. The justices will consider the issue of severability -- whether the law can stand if they determine the individual mandate is unconstitutional -- and whether the Medicaid expansion in the overhaul represents an unlawful coercion of the states by the federal government (Radnofsky/Kendall, Wall Street Journal, 3/27).

Possible Effects on California

Headlines and links to additional coverage about how California might be affected by the reform law ruling are provided below.

For additional coverage of the Supreme Court case, see today's Road to Reform.

Clark Norwood
For me the key point I took away from yesterdays proceedings was that congress is trying to create commerce so it can regulate it. Force everyone into the healthcare system so they can regulate them in the healthcare system. They have created the solution to a problem that does not exist and now they have to answer for creating the problem their solution solves. Their "solution" is such massive overkill. There are people in this country that don't have healthcare that want it and that is the situation that should have been addressed. Instead congress decided to scrap the current system and institute a new version to accomplish the goal of their current agenda - the government taking over yet another aspect of the lives of the citizens. I hope the SCOTUS scraps the whole thing, maybe then we can have a reasonable solution to the real problem and nothing more. One that is cheaper, with no hidden stuff to bite us in the backside somewhere down the road.

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