New Low in Support for Health Law; Half Expect Justices to Go Political

New Low in Support for Health Law; Half Expect Justices to Go Political

How Low Can You Go?: A new poll released last week saw the Affordable Care Act (ACA) reach a new low in public support.  In the latest ABC News/Washington Post survey, 53 percent of Americans now oppose the sweeping health care law overall, as opposed to the 39 percent who support it. 

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Health reform ruling: 4 scenarios

Politico, By Jennifer Haberkorn -

April 1, 2012: One day in June, the Supreme Court will declare whether President Barack Obama’s health care reform law is constitutional.

The next day, both parties will have to pick up the pieces.

A victory in the Supreme Court — less than five months before the presidential election — doesn’t guarantee that either party can win over public opinion. And it certainly doesn’t signal the end of the debate over health care reform.

Here are the four most likely scenarios:

The mandate is struck along with insurance reforms

This scenario robs the Obama administration of key, popular benefits of the health law. If the insurance rules are struck, insurance companies will still be able to deny coverage based on customers’ costly pre-existing conditions and charge more to older and sicker — or female — patients.

The Obama administration and congressional Democrats would likely try to put the pieces of the health law back together — but not without blaming Republicans for pushing a lawsuit that they will say “puts insurance companies in charge” again.

“How will the public react when the United States Supreme Court upholds systematic gender discrimination against women in the insurance market?” asked John McDonough, a public health professor at Harvard who helped craft the health law as a senior Senate aide.

“I hope they’ll be pretty pissed off,” he said. “Maybe it will take [the benefits] being struck to wake up the public that they were in there.”

If there is strong public reaction, Republicans would be under pressure to find some way of enacting those insurance reforms without the mandate.

“If Republicans do win, they’re going to have to work on some other ways to get reliable coverage for people who don’t have employer coverage,” said Mark McClellan, who served in the second Bush administration and is now director of the Brookings Institution’s Engelberg Center for Health Reform.

Policymakers have identified alternatives to the mandate that attempt to accomplish the same goal of encouraging everyone — especially young and healthy people — to purchase health insurance, which spreads the risk and contains costs. Some potential fixes are relatively bipartisan, at least on paper.
Those ideas include: charging more if a person buys insurance at the last minute, tax incentives and a promise that if a person buys coverage, that person wouldn’t lose it if he or she were to get sick and need it.

“There may be interest in both sides on those kinds of reforms,” McClellan said.

But the politics will be incredibly messy after a court ruling striking a key part of Obama’s signature law, and it’s unlikely that the parties would suddenly clasp hands and start seeking solutions together amid a presidential campaign. Not much is likely to get done on Capitol Hill until the 113th Congress begins in January 2013.

In addition, insurance companies will be under tremendous political pressure to voluntarily end the practices , but that would probably lead to higher premiums.

If Democrats do well in the November elections, their leaders in Congress could try to re-do the mandate under Congress’s taxing power. But it would be difficult to get moderate Democrats to vote for something that resembles a mandate that the public never warmed to and the court declared unconstitutional.

Still, if they are successful, the tax-power mandate would be more constitutionally sound.

“All they’d have to do is bring it up through budget reconciliation … and add the word ‘tax,’” McDonough said.

The mandate alone is struck; insurance reforms remain

This scenario would be just as problematic — or perhaps worse — for backers of the health reform law.

The combination of requiring insurance companies to provide costly benefits without having the broader insurance pool created through the mandate would probably cause insurance premiums to spike. Republicans would blame Obama for making health insurance more expensive. Democrats would blame insurers for the higher premiums.

In other words: Déjà vu and total gridlock.

It’s the scenario insurance companies dread most — and they could start a mini revolt over having to cover expensive patients without the mandate.

“For the administration, the challenge is how do they credibly convince insurance companies that it’s going to work,” McClellan said. “By early 2013, if it’s not completely clear to insurers how they’re going to make coverage sustainable, they’re going to have a real problem.”

The scenario would again pressure lawmakers to enact legislation to encourage consumers to buy health insurance.

If the mandate is struck — with or without the insurance reforms — progressives are going to argue that the only solution is a single-payer program. Justice Ruth Bader Ginsburg pointed out from the bench last week that it’s the market-driven nature of the mandate that raises the constitutionality questions. A straight, government-run, single-payer program doesn’t pose that problem.

“There’s something very odd about … the government can take over the whole thing and we all say, ‘Oh, yes, that’s fine,’ but if the government wants to get — to preserve private insurers, it can’t do that,” she said during oral arguments on the individual mandate.

But there is little chance Obama would back a “single payer” platform right before an election.

The entire law (or most of it) falls

This is the scenario Republicans are looking for, but it may come back to bite them.

If the Supreme Court strikes the entire law, “we’re in a whole different world,” said Ezekiel Emanuel, who advised the White House on health reform. “Who knows what happens. It’s all uncertain.”

While the Supreme Court would get rid of the unpopular pieces of the law, the popular ones would be swept aside too.

And the supporters of the law wouldn’t hesitate to remind voters that Republicans robbed their kids of the chance to stay on their parents’ insurance plan through age 26, allowed insurance companies to charge more to women and re-created the Medicare prescription donut hole. And a lot of people counting on getting covered in 2014 would be disappointed.

The ruling would likely re-energize the Democratic base; Obama and Democrats down the ballot would be able to run against an “activist” Supreme Court.

Republicans would try to move quickly to enact small-scale health reform legislation aimed at restoring some of the popular pieces of the health law.

But Democrats won’t want to support something far less comprehensive than the Affordable Care Act, not with some 50 million Americans uninsured.

The entire law stands

This is what the Obama administration is hoping for. But a thumbs up from the Supreme Court doesn’t solve all of the health law’s — or administration’s — problems.

The mandate is considered relatively weak: The penalty for not obeying it starts at $95 in 2014 — that’s nothing compared with the cost of insurance premiums. It does increase after that, but the amounts are still less than the cost of a typical policy.

It’s hard to see how Republicans don’t force a vote in 2013 on delaying the mandate for a year or further weakening the penalty, which would put financial pressure on the insurance companies.

“I never felt [the mandate] was strong enough to really drive behavior,” said Mary Grealy, president of the Healthcare Leadership Council. “We knew we’d have to do a lot of work to encourage people to enroll and get covered.”

Republicans would use a ruling affirming the law to stir up their base, arguing that if the court won’t strike the law, voters need to elect a Republican president and Congress that will. They’d also face new pressure to define exactly what they would do to reform the health system.

“It won’t be that hard to overturn the unpopular provisions, but it is going to be a challenge to overturn or leave unaddressed the problem of affordable access to insurance,” McClellan said.

Health-care hearings are over, what happens next?

The Washington Post, By N.C. Aizenman -

March 28, 2012: Now that the Supreme Court hearings are over, what will happen?

The justices must decide how they will rule on the case. They will consider the arguments they heard this week and others that were submitted in written form in addition to their own reading of the law.

When will they decide?

They can issue a ruling at any time, but a decision is likely to come in late June, just before they adjourn.

In the meantime, will anything happen to my insurance?

The health-care law will remain in force unless the court rules otherwise. Any changes that already may have been made to your plan to comply with the law are still in effect.

What changes may have been made to my plan because of the law?

If you have a private plan, it may, among other new features, now allow you to include adult children up to age 26. The plan also may cover preventive services such as colonoscopies and mammograms without charging co-pays or deductibles, and it will have eliminated lifetime limits on what it will pay for your care. If you are on Medicare, you also have preventive services with no out-of-pocket charges, and you are eligible for a discount on prescription drugs if you reach the program’s “doughnut hole” coverage gap.

When the court rules, what might it do?

The court could uphold the law, overturn it, strike some provisions while leaving others in place or rule that a decision must wait until the law takes full effect.

If the court overturns the entire law, what would happen to my 25-year-old daughter who is on my health plan?

Federal law would no longer require your insurer to cover her. But many states have incorporated this rule into their own laws, and it’s possible that it would remain valid at the state level even if the federal law is overturned. That appears to be the case in Virginia and the District of Columbia — although not Maryland — according to Katie Keith, a Georgetown University professor and author of a recent study of the issue. Also, your insurer could keep offering this coverage voluntarily. In fact, many chose to comply with this provision well before they had to.

I’m a senior on Medicare who has been receiving a discount on drugs. If the court overturns the entire law, would that go away?

Yes.

If the court overturns the entire law, what would happen to people with preexisting conditions?

The law has set up temporary “high-risk pools” to cover such people until 2014, when insurers will be barred from discriminating against them. Most of these pools are run by states. If the law were overturned, states could maintain the pools. But many might not, because they would no longer have access to federal funding the law provides.

What will happen if the court strikes down only the requirement that nearly all Americans obtain insurance?

All of the current rules discussed above would remain in force. And the provisions of the law that are set to take effect until 2014 would roll out as scheduled. Without the mandate, the law’s other requirements might substantially drive up insurance premiums. States could adopt their own rules requiring residents to get insured. Carolyn Quattrocki, executive director of Maryland Gov. Martin O’Malley’s office of health-care reform, said officials there would consider taking this route.

Court signals entire health care law might need to be struck down

MSNBC, By Tom Curry –

March 28, 2012: In the Supreme Court’s final day of arguments on the constitutionality of the 2010 health care law, the justices wrestled Wednesday with what happens to the law if they strike down the provision that requires the uninsured to buy insurance.

“I think a majority of the court believes that if it rules that individual mandate is unconstitutional, then the rest of the health care law probably cannot be saved,” reported NBC’s Pete Williams after hearing the 90 minutes of oral argument.

“It would seem that a majority of the court — again, breaking down along the familiar lines — believes … it would be a very difficult, almost impossible, chore to figure out which parts of the law.

Williams reported that the justices were “very concerned” about the effects on the insurance industry of leaving intact the obligations imposed on it to offer coverage to all who seek it without the source of income from the individual mandate.

“They are very worried about saddling the insurance industry with that,” he said.

Justice Anthony Kennedy said during Wednesday’s argument he thought it would be the ultimate in judicial activism to leave in place insurance reforms such as guaranteed-issue — the requirement that insurance companies offer coverage to anyone, no matter how seriously ill — if the individual mandate is struck down.

Justice Antonin Scalia seemed to suggest at one point during Wednesday’s argument that Congress might find itself unable to repair what remains of the law if the justices invalidate parts of it. “There is such a thing as legislative inertia, isn’t there?” Scalia said.

Justice Elena Kagan, the former solicitor general in the Obama administration, indicated that she might vote to preserve all other parts of the law except guaranteed issue and other insurance reforms, if the court struck down the individual mandate.

Referring to the new insurance marketplaces, or “exchanges,” which the law sets up, Kagan asked, “Is half a loaf better than no loaf? And on something like the exchanges it seems to me a perfect example where half a loaf is better than no loaf. The exchanges will do something.”

And Justice Ruth Bader Ginsburg told Paul Clement, the attorney representing the states who oppose the law, “There are so many things in this Act that are unquestionably okay…. Why make Congress re-do those?”

She told Clement, “Why should we say it’s a choice between a wrecking operation, which is what you are requesting, or a salvage job. And the more conservative approach would be salvage rather than throwing out everything.”

A ruling striking down the individual mandate seemed a plausible scenario after Tuesday’s argument in which Solicitor General Donald Verrilli, arguing the case for the Obama administration, came under heavy pressure from Justice Kennedy and conservatives on the court, who wanted him to justify the law’s requirement that uninsured people purchase coverage.

The 2010 Affordable Care Act does not contain a severability clause so the justices were confronted with the task of trying to ascertain what Congress would have wanted, if it knew that part of the law would be struck down.
The Obama administration argues in its brief that the high court should hold that only two provisions of the act can’t be severed from the individual mandate provision.

The two provisions that the administration says are inseparable are guaranteed issue and “community rating” — which means insurance premiums do not vary by individuals’ health characteristics or health status.

The Obama administration argues that without the individual mandate, the guaranteed issue and community rating provisions “would drive up costs and reduce coverage, the opposite of Congress’s goals.” They, therefore, can’t be severed from the individual mandate and “must be invalidated if the court finds it unconstitutional.”

But all the other provisions in the law “can operate independently and would still advance Congress’s core goals of expanding coverage, improving public health, and controlling costs even if the minimum coverage provision were held unconstitutional.”

Those other provisions include, for example, an increase in the Medicare tax on people who earn more than $200,000 a year, a requirement that children up to age 26 be covered on their parents’ health insurance policy, and an expansion of prescription drug benefits for people on Medicare.

But arguing for the National Federation of Independent Business, Michael Carvin, a former top Justice Department official in the Reagan administration, argues in his brief that while severability normally removes “a small discrete part” of a law to preserve “a larger coherent whole,” in the case of the health care overhaul, the issue “is removing a large coherent whole to preserve small discrete parts.”

It is inconceivable, he contends, that Congress, “trying to adopt a comprehensive solution to a perceived crisis,” would have been content with “the menagerie of tag-along provisions that remain after a statute’s pillars are removed.”

The court, he said, can’t take on the task of examining all the details of the law. “There are simply too many provisions to engage in such granular inquiries … Once numerous, substantial pieces of the legislation cannot operate as intended, this Court should invalidate the whole statute.”

Once the law is struck down “let Congress handle rebuilding,” Carvin says.
Also to be argued Wednesday is the constitutionality of Congress’s expansion of the joint federal-state Medicaid program for low-income people.

The states traditionally were required to offer Medicaid only to low-income people in certain categories: families with dependent children, the elderly, blind people, the disabled, children, and pregnant women. But the 2010 law requires states to cover all individuals under age 65 with incomes up to 133 percent of the poverty level.

More than two dozen states are asking the court to strike down the Medicaid expansion on the grounds that the law coerces the states into going along with the Medicaid expansion.

The states contend that the law threatens them “with the loss of every penny of federal funding under the single largest grant-in-aid program in existence — literally billions of dollars each year — if they do not capitulate to Congress’ steep new demands. There is no plausible argument that a state could afford to turn down such a massive federal inducement, particularly when doing so would mean assuming the full burden of covering its neediest residents’ medical costs … .”

But the Obama administration argues that it isn’t forcing the states to do anything. States “are free, as a matter of law, to turn down federal Medicaid funds if they view program conditions as sufficiently contrary to their interests,” Verrilli says in his brief.

The 3 ways the Court could rule against Obamacare’s mandate

The Washington Post, By Ezra Klein –

March 28, 2012: By nearly all estimates, yesterday’s oral arguments were not good for Obamacare supporters. Solicitor Donald Verrilli, who represented the Obama administration, stumbled in his opening defense of the health reform law’s individual mandate. Paul Clement, representing the law’s opponents, proved a strong opponent. Justices aggressively questioned Verrilli, showing some signs of skepticism over Congress’ authority to require Americans to buy insurance.

That all could lend even more gravity to the issue that the Supreme Court takes up today: If it does toss the individual mandate, what else would have to come down with it? In legal jargon, it’s an issue of “severability:” How much of the law could, or couldn’t survive, if the Court rules the mandated purchase of insurance to be unconstitutional. Here are the three outcomes that will be presented to the Court this morning, and what they would mean for the health reform law:

If the mandate falls, the rest of the law stands.

The outcome: The narrowest ruling the Supreme Court could issue would be one where the individual mandate falls by itself but leaves the rest of the law intact. Americans would no longer be required to purchase health insurance – but health insurance plans would still be required to accept all customers. A bevy of insurance reforms, things like barring insurance companies to to charge sick customers significantly more than healthy ones, would remain intact.

The impact: Insurance premiums would increase, as sicker Americans would be more likely to purchase coverage than those who don’t foresee significant health care costs. Various health care economists have estimated that the cost of health insurance, in the individual market, could increase anywhere between 2 to 40 percent without a mandate. The breadth of the insurance expansion would be significantly reduced by as much as 24 million. Congress could pass a variety of policies to patch the hole, but it’s hard to see Republicans voting to fix “Obamacare.”

The backer: Neither the Obama administration nor the law’s opponents wants to see this outcome. The Supreme Court actually had to appoint an outside lawyer, H. Bartow Farr III, to make this argument to them. Farr does have some precedent on its side: When a district court in Virginia ruled the individual mandate unconstitutional, it did so without striking down any other parts of the health reform law.

The mandate takes down the Affordable Care Act’s insurance reforms.

The outcome: The Supreme Court could find that, if they strike the mandate, the rest of the health reform law’s insurance expansion unravels. Insurance becomes too expensive without the mandate, they could find, and increasing coverage to 32 million Americans becomes unworkable. In this scenario, the Court would strike down the health reform law’s requirement that insurance companies accept all applicants, allowing them – as they do now – to reject sicker Americans who would cost more to cover.

The impact: Health reform’s insurance expansion gets pared back significantly, but not totally wiped out. If the expansion of Medicaid up to 133 percent of the Federal Poverty Line, for example, survives unscathed, that would be expected to bring coverage to 16 million more Americans. Insurance subsidies, if also left standing, may do some leg work to make insurance more affordable. This outcome would likely be the worst for the sickest Americans, who could still face very expensive premiums.

The backer: This is the argument that the Department of Justice will present this morning. “The minimum coverage provision is essential to ensuring that the Act’s guaranteed-issue and community-rating reforms advance Congress’s goals,” the administration argued in its brief to the Supreme Court. Without it, those provisions would create an adverse selection cascade…because healthy individuals would defer obtaining insurance until they needed health care leaving an insurance pool skewed toward the unhealthy.”

If the individual mandate falls, so does the entire Affordable Care Act

The outcome: When Congress wrote the Affordable Care Act, it left out one crucial provision: A severability clause. Quite often, legislators include a boilerplate language specifying that, even if a small portion of it is determined unconstitutional, the bulk of it still stands. But the Affordable Care Act doesn’t have that clause, leading the law’s opponents to argue that, if the mandate falls, so does the entire 905-page bill.

The impact: Overturning the entire law would, unsurprisingly, have the most wide-reaching effect. It would eliminate the private insurance expansion, the Medicaid expansion and a slew of Medicare payment reforms. Some of those changes have already begun taking effect, changing the way doctors get paid. If those got repealed by the Supreme Court, and the financial incentives to do medicine differently were taken away, those changes could get rolled back.

The backer: The 26 states opposing the law will make this argument in front of the Supreme Court this morning. While many constitutional scholars think that such a ruling is unlikely, because of its sweeping nature, the opponents also have precedent on their side: The Eleventh Circuit Court of Appeals struck down the entire health reform law in its ruling, because it lacked a severability clause.

Justices take up fate of health law if mandate goes

Politico By Josh Gerstein and Carrie Budoff Brown –

March 28, 2012: The Supreme Court struggled Wednesday with a question that looks increasingly significant after conservative justices battered the individual mandate: Should the rest of President Barack Obama’s health care law stand if the requirement to purchase insurance falls?

Most of the justices appeared opposed to throwing out the entire law, but their views on how much to keep in place were murky, and the divisions between conservatives and liberals were not always as clear cut as they were Tuesday.

The questions showed the justices are wrestling with a real dilemma: Striking the entire health law would be a radical step and could throw the country into an uproar. But they’re not health care experts, and they were clearly worried about the consequences if they pull out pieces of the law and that throws the rest of the health care system into chaos.

Justice Ruth Bader Ginsburg argued that the most legally conservative position is to uphold the law and that the decision on what to do with rest of the law should be left to Congress.

If the justices have to choose between “a wrecking operation and a salvage job, a more conservative approach would be a salvage job,” she said.

Justice Anthony Kennedy, who is viewed as a key swing vote, appeared to align himself with those inclined to throw out the law if the mandate goes.

If the justices leave part of the law in place, “by reason of the court, we would have a new regime that Congress did not provide for, did not consider,” Kennedy said.

He said it would be a “more extreme exercise of judicial power” to do surgery on the legislation — a position endorsed by Justice Antonin Scalia, who said it is “totally unrealistic” to comb through a 2,700-page law.

“My approach would be if you take the heart out of the statute, the statute is gone,” Scalia said.

A lawyer for 26 states seeking to strike down the entire law, Paul Clement, said many of the law’s provisions are tied together. Striking those parts would leave “a hollowed-out shell” not worth saving, Clement argued.

“But [Congress] would have passed part of that hollowed-out shell,” Chief Justice John Roberts replied, citing some uncontroversial provisions in the law.

The issue up for debate Wednesday becomes relevant only if the court decides the mandate is unconstitutional, forcing the justices to consider what other elements of the law might need to go as well.

But after the court’s conservative justices defied expectations by attacking the mandate, the focus of Wednesday’s arguments no longer felt like an academic exercise. The harsh reception Tuesday prompted court watchers to revise their earlier predictions that the mandate was certain to survive, saying it appears to be in more trouble than many had expected.

Conservative justices skeptical of individual mandate

The Washington Post, By N.C. Aizenman and Robert Barnes -

March 27, 2012: The Supreme Court on Tuesday ended two hours of arguments about the key component of the nation’s health-care overhaul, with the court’s dominant conservatives appearing deeply skeptical that the Constitution gives Congress the power to compel Americans to either purchase health insurance or pay a penalty.

Justice Anthony M. Kennedy, traditionally the justice most likely to side with the court’s liberals, suggested that the 2010 Patient Protection and Affordable Care Act invoked a power “beyond what our cases allow” the Congress to wield in regulating interstate commerce.

“Can you create commerce in order to regulate it?” he asked.

The question came up during the second of three days of arguments as the Obama administration’s top lawyer came under fire from conservative justices on the main constitutional question before them. The sharp questioning raised doubts about whether the individual insurance mandate could survive the Supreme Court’s review.

A day after opening their historic review of the two-year-old law, the justices scheduled two hours of arguments — twice the normal allotment — to consider the issue. The question of the limits of government power has animated the nation’s debate over the health-care law since it was passed by a Democratic Congress in 2010. The law, President Obama’s signature domestic initiative, has been roundly denounced by Republican officeholders and the candidates vying to run against him in the November presidential election.

U.S. Solicitor General Donald B. Verrilli Jr., representing the government, was the first to argue Tuesday, and he immediately found himself assailed by skeptical questions from some of the court’s conservatives. The lawyers for the parties challenging the law were scheduled to present their arguments after Verrilli.

“So if I’m in any market at all, my failure to purchase subjects me to regulation?” Justice Antonin Scalia wanted to know.

He asked whether, if the individual mandate were upheld, the Congress could then compel people to buy broccoli or cars.

Chief Justice John G. Roberts Jr. wondered if the government could require everyone to buy cellphones, since that would facilitate the government’s system for providing fire and ambulance services in emergencies.

Verrilli repeatedly countered that the health-care market was unique because no one can predict what services they will need and when.

But Justice Samuel A. Alito Jr. brought up burial services. Aren’t people who don’t have burial insurance making a decision about how they are going to pay for their inevitable funeral? he asked. He characterized the underlying logic as “artificial.”

Justice Stephen G. Breyer rose to the government’s defense.

If the United States had a burial insurance market equivalent to the extensive system of private and public insurance that it has for health care, perhaps it would not be inappropriate to require people to obtain burial plans, he said.

It was not the only moment the debate seemed to be among the justices rather than between them and Verrilli.

Supreme Court turns to key constitutional issue in health-care law

The Washington Post, By N.C. Aizenman and Robert Barnes -

March 27, 2012: The Supreme Court on Tuesday ended two hours of arguments about the key component of the nation’s health-care overhaul, with the court’s dominant conservatives appearing deeply skeptical that the Constitution gives Congress the power to compel Americans to either purchase health insurance or pay a penalty.

Justice Anthony M. Kennedy, traditionally the justice most likely to side with the court’s liberals, suggested that the 2010 Patient Protection and Affordable Care Act invoked a power “beyond what our cases allow” the Congress to wield in regulating interstate commerce.

“Can you create commerce in order to regulate it?” he asked.

The question came up during the second of three days of arguments as the Obama administration’s top lawyer came under fire from conservative justices on the main constitutional question before them. The sharp questioning raised doubts about whether the individual insurance mandate could survive the Supreme Court’s review.

A day after opening their historic review of the two-year-old law, the justices scheduled two hours of arguments — twice the normal allotment — to consider the issue. The question of the limits of government power has animated the nation’s debate over the health-care law since it was passed by a Democratic Congress in 2010. The law, President Obama’s signature domestic initiative, has been roundly denounced by Republican officeholders and the candidates vying to run against him in the November presidential election.

U.S. Solicitor General Donald B. Verrilli Jr., representing the government, was the first to argue Tuesday, and he immediately found himself assailed by skeptical questions from some of the court’s conservatives. The lawyers for the parties challenging the law were scheduled to present their arguments after Verrilli.

“So if I’m in any market at all, my failure to purchase subjects me to regulation?” Justice Antonin Scalia wanted to know.

He asked whether, if the individual mandate were upheld, the Congress could then compel people to buy broccoli or cars.

Chief Justice John G. Roberts Jr. wondered if the government could require everyone to buy cellphones, since that would facilitate the government’s system for providing fire and ambulance services in emergencies.

Verrilli repeatedly countered that the health-care market was unique because no one can predict what services they will need and when.

But Justice Samuel A. Alito Jr. brought up burial services. Aren’t people who don’t have burial insurance making a decision about how they are going to pay for their inevitable funeral? he asked. He characterized the underlying logic as “artificial.”

Justice Stephen G. Breyer rose to the government’s defense.

If the United States had a burial insurance market equivalent to the extensive system of private and public insurance that it has for health care, perhaps it would not be inappropriate to require people to obtain burial plans, he said.

It was not the only moment the debate seemed to be among the justices rather than between them and Verrilli.

Hard Questions From Justices Over Insurance Mandate

The New York Times, By Adam Liptak -

March 27, 2012 : With the fate of President Obama’s 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 court’s more conservative justices.

“Can you create commerce in order to regulate it?” Justice Anthony M. Kennedy asked the lawyer, Solicitor General Donald B. Verrilli Jr., only minutes into the argument.

Justice Antonin Scalia soon joined in. “May failure to purchase something subject me to regulation?” he asked.

Chief Justice John G. Roberts Jr. asked if the government could compel the purchase of cellphones. And 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, and it was not clear that it had captured one.

The court’s 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. Obama’s 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 Tuesday’s arguments — requiring most Americans to obtain health insurance or pay a penalty.

19th-century law is focus on first day of Supreme Court arguments

Modern Healthcare, By Joe Carlson –     March 26, 2012: With crowds of demonstrators outside the Supreme Court on   Monday, the nine justices inside grilled three attorneys over whether an 1867   federal law prohibits courts from hearing challenges to the new federal   requirement that nearly all Americans purchase health insurance.     The justices leveled hard-nosed questions about the substance and intent of   the 19th-century law—known as the Anti-injunction Act, and whether it ought   to deny them jurisdiction to hear challenges to the insurance mandate in the   Patient Protection and Affordable Care Act.     Monday’s 90-minute session marked the first of three days of arguments about   the law. “This case presents questions of great moment, and the   Anti-injunction Act does not bar the courts from hearing from,” U.S.   Solicitor General Donald Verrilli Jr. said in an opening remark before a room   of observers pressed shoulder-to-shoulder in the courtroom.     Though the discussion frequently delved into granular discussions of federal   statutes and court precedents, Verrilli urged justices to find, at base, that   Congress did not intend the penalty for failure to buy health insurance in   2014 as a tax, even though the penalty is enforced through the procedures in   the tax collection laws.     With certain narrow exceptions, the Anti-injunction Act bars any lawsuit in   any court from interfering with the collection of a tax before the amount is   paid or a formal collection action has begun.     “The AIA imposes a pay-first, litigate-later rule that is central to tax   collection,” said attorney Robert Long, who was appointed by the justices to   argue in favor of the idea that the law should bar them from hearing the case   until penalties are assessed sometime after 2014.     However, Long faced among the toughest questions from the justices, despite   his appointment. At one point, Justice Sonia Sotomayor, asked what “parade of   horribles” would follow if the court decided it could hear the case now.     Long replied there was the risk that litigants and federal judges may see   such a decision as an opening to consider granting other waivers to the   Anti-injunction Act in other cases—a prediction also made in an amicus brief   filed by commissioners of the Internal Revenue Service.     Following Long’s response, Justice Antonin Scalia concluded sarcastically,   “So there will be no parade of horrors because all federal judges are   intelligent.” The remark drew laughter from the crowd.     Also addressing Long, Justice Stephen Breyer said that neither the text of   the act nor the way that it was codified in the federal statutes appeared to   support a decision to wait until 2014. “Congress here has nowhere used the   word tax,” Breyer said.     Justice Ruth Bader Ginsburg asked whether the argument missed the point of   the lawsuit, which doesn’t actually challenge the penalty regardless of   whether it’s found to be a tax. “This suit is not challenging the penalty,”   Ginsburg said. “This suit is challenging the must-buy requirement. If the   requirement is upheld, (the citizens suing over the mandate) will not contest   the penalty.”     In questioning Long, Scalia made clear his feeling about whether the court   should hear the case: “Unless it’s clear, the courts are not deprived of   jurisdiction. Whatever else this is, I find it hard to believe that this is   clear.”