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.

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