Justices
Have Hard Questions on Insurance Requirement
By ADAM LIPTAK
Published: March 27, 2012 - New York Times
WASHINGTON – With the fate of President Obamafs health
care law hanging in the balance at the Supreme Court on Tuesday, a lawyer for
the administration faced a barrage of skeptical questions from four of the
courtfs more conservative justices.
gCan you create commerce in order to regulate it?h
Justice Anthony M. Kennedy asked the lawyer, Solicitor General Donald B.
Verrilli Jr., only minutes into the argument.
Justice Antonin Scalia soon joined in. gMay failure to
purchase something subject me to regulation?h he asked.
Chief Justice John G. Roberts Jr. asked if the
government could compel the purchase of cellphones. Justice Samuel A. Alito Jr.
asked about forcing people to buy burial insurance.
The conventional view is that the administration will
need one of those four votes to win the case, and it was not clear on Tuesday
that it had captured one.
The courtfs four more liberal members – Justices Ruth
Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan – indicated
that they supported the law, as expected. Justice Clarence Thomas, who asked no
questions, is thought likely to vote to strike down the law.
Everything about the argument was outsized. It was, at
two hours, twice the usual length. The questioning was, even by the standards of
the garrulous current court, unusually intense and pointed. And the atmosphere
in the courtroom, which is generally subdued, was electric.
The legal question for the justices was whether
Congress had exceeded its constitutional authority in requiring most Americans
to obtain insurance or pay a penalty. The practical question was whether Mr.
Obamafs signature domestic achievement would survive.
The law is the most ambitious piece of social
legislation in generations. In attempting to deliver health care to tens of
millions of Americans without insurance, it relied on a controversial mechanism
at the center of Tuesdayfs arguments, the individual mandate.
Justice Ginsburg said the mandate was a response to
the fact that uninsured people receive free health care that ends up being paid
for by others. gThey are making the rest of us pay,h she said.
Justice Sotomayor said that Americans would not stand
for a system in which children in danger of dying were turned away from
emergency rooms.
But Justice Kennedy said the requirement to obtain
insurance was unprecedented, giving rise to ga heavy burden of justification.h
Mr. Verrilli responded that the health care market was
unique and that regulating how people pay for services they are virtually
certain to use at some point in their lives was well within the authority
granted to the federal government by the Constitution, which gives Congress
specified powers, reserving the rest to the states and to the people. The two
powers at issue in the case, set out in Article I, Section 8, concern the
regulation of interstate commerce and the imposition of taxes.
The administrationfs arguments concerning the tax
power did not gain much traction, and most of the two-hour argument concerned
the Commerce Clause, which gives Congress the power to regulate commerce gamong
the several states.h
The question there, Justice Kennedy said, was whether
there were gany limitsh to Congressional power under the commerce clause, adding
that he was concerned the health care law required individuals to perform gan
affirmative act.h
Justice Kennedyfs questioning is famously hard to
read, and near the end of the argument he noted that gmost questions in life are
questions of degree.h But the great weight of his questioning was skeptical.
Justices Scalia and Alito were consistently hostile to
the law, Chief Justice Roberts a little less so.
Asked about whether there were any limits on federal
power under the commerce clause under the administrationfs theory, Mr. Verrilli
noted two, in a somewhat convoluted answer. Congress has the authority to enact
a comprehensive response to a national economic crisis, he said. And the health
care law concerns only how who people bound to use health care will have to pay
for it.
The Supreme Court has read the commerce clause
broadly, saying it allows Congress to
limit how much wheat may be grown on a family farm and to
punish the cultivation of home-grown marijuana.
There have been only two modern exceptions to that
broad interpretation. In 1995, the court struck down a
federal law regulating guns near schools. In 2000, it struck down a
federal law allowing suits over violence against women. In both cases, the
court said the activity sought to be regulated was local and noncommercial.
On Tuesday, Paul D. Clement, representing the 26
states challenging the law, said none of those rulings contemplated requiring
people to enter a commercial market.
Michael A. Carvin, representing private challengers,
said that if the Supreme Court upheld the mandate, Congress would be free to
regulate all human activity gfrom cradle to grave.h