March 27, 2012, 8:20 a.m.
“Are there any limits,” asked Justice Anthony Kennedy, one of three conservative justices whose votes are seen as crucial to the fate of the unprecedented insurance mandate.
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Chief Justice John G. Roberts Jr. suggested that the government might require Americans to buy cellphones to be ready for emergencies. And Justice Antonin Scalia asked if the government might require Americans to buy broccoli or automobiles.
“If the government can do this, what else can it … do?” Scalia asked.
The tough questioning of the administration’s lawyer is no sure sign of how the justices will rule when they hand down their decision in the case, Department of Health and Human Services, et al., vs. State of Florida, et al., likely in June.
But Tuesday’s arguments may signal trouble for the mandate, widely seen as a cornerstone of the law’s program for achieving universal healthcare coverage for the first time in the nation’s history.
With the court’s four liberal justices expected to vote to uphold the sweeping law, the administration will have to win over at least one of the five justices on the court’s conservative wing.
Few believe Justices Clarence Thomas or Samuel A. Alito Jr. will support the mandate. That has made Scalia, Kennedy and Roberts the focus of intense speculation for months.
Solicitor General Donald B. Verrilli Jr. tried to argue that the insurance mandate would not open the door to other requirements to buy products because healthcare is unique.
“Virtually everyone in society is in this market,” said Verrilli, who was prodded on by Justice Ruth Bader Ginsburg and other liberal justices. That means that if someone elects not to get health insurance but then gets sick, as everyone will, that person will pass along costs to everyone else, Verrilli explained.
To prevent that, the administration has argued that that Congress can use its authority under the commerce clause of the Constitution to impose the mandate as a means to regulate health insurance.
The Constitution says Congress has the power to “regulate commerce” and to impose taxes to promote the general welfare. The court has in the past upheld federal laws regulating all manner of business — from agriculture and aviation to who can be served at the corner coffee shop — and Roberts, Scalia and Kennedy have in other cases supported the government’s broad authority in that area.
But Tuesday, the three — and Alito — repeatedly criticized the requirement to buy health insurance as forcing people to enter a market, which they said was a new and troubling use of federal power.
“That changes the relationship of the individual to the federal government,” Kennedy said.
The architects of the 2010 Patient Protection and Affordable Care Act included an insurance requirement after years of experience with insurance markets suggested that it is very difficult to guarantee health insurance to everyone, including people with preexisting medical conditions, without a way to induce younger, healthier people to get covered. That offsets the cost of insuring older, sicker ones.
Under the law, most Americans, starting in 2014, will have to get a health insurance plan that meets a basic set of standards or pay a tax penalty that will rise from $95 in 2014 to $695 in 2016. (The penalty for a family will be up to $2,085 in 2016.)
Health policy experts warn that without some incentive to get insurance, people could wait until they got seriously ill and then sign up for coverage, pushing up premiums for everyone.
The mandate was once embraced by both political parties. But more recently, it has been seized on by conservative critics of the healthcare law as an egregious example of government overreach. And it became the crux of lawsuits challenging the healthcare law by 26 states and plaintiffs represented by the conservative National Federation of Independent Business.
Over the last two years, federal courts across the country have issued conflicting rulings on the insurance requirement, though only one appellate court has backed the constitutional challenge to the law. Two high-profile conservative judges have supported the mandate.
Original source: Justices signal possible trouble ahead for health insurance mandate