- The Washington Times - Tuesday, March 27, 2012

Getting to the crux of challenges to President Obama’s health care overhaul Tuesday, the Supreme Court spent the second day of oral arguments grappling over whether the government can require Americans to buy coverage — and making clear that they want the government to show limits to the newfound power it seeks.

In a two-hour hearing before a packed courtroom with arguments ranging from broccoli to cellphones, the nine justices also wrestled with questions of whether the law merely regulates an existing health care market or whether, for the first time, it forces people into a market.

At stake is the law’s individual mandate, which requires most Americans to obtain coverage or pay a penalty. The administration says the mandate is necessary to fix the insurance market, while challengers say it crushes individual liberty by requiring people to buy something just because they’re alive.

“That changes the relationship of the government to the individual in a very fundamental way,” said Justice Anthony M. Kennedy, whose vote is considered the most pivotal.

A key test of Mr. Obama’s chief domestic reform, the case is also widely regarded as a crucial determinant of whether the government has overstepped its constitutional bounds. Justices on Monday heard arguments over whether an arcane 19th-century tax law would prevent them from reaching a decision on the case altogether. On Wednesday, the court will hear challenges to the law’s expansion of Medicaid.

Tuesday’s arguments were focused on the individual mandate and whether it’s an appropriate application of the Constitution’s commerce clause.

For much of the hearing, the justices’ questions seemed to focus on whether there are limits to the new power sought by the government, challenging Solicitor General Donald B. Verrilli Jr. to describe something the government can’t do if it can require people to buy insurance.

One after the other, they brought up purchases that the government hypothetically could mandate, such as burial services, cellphones and broccoli.

Justice Samuel Anthony Alito Jr. said he doesn’t see any difference between mandating health insurance versus mandating burial insurance. Both are necessary to make sure health care or funeral costs aren’t shifted on to other people, he said.

“Most people are going to need health care,” he said. “Almost everybody. Everybody is going to be buried or cremated at some point. What’s the difference?”

He appeared unconvinced by Mr. Verrilli’s answer that when someone without insurance needs health care, it affects the entire health care market by spreading the costs and ultimately pushing up the price of premiums.

Chief Justice John G. Roberts Jr. asked whether the government could require citizens to buy cellphones so they could access police, fire and ambulance services. “So can the government require you to buy a cellphone because that would facilitate responding when you need emergency services?” he said. “You can just dial 911 no matter where you are?”

Mandatory cellphone purchases isn’t a method of payment, while health insurance is, Mr. Verrilli replied. Endeavoring to frame the health care market as entirely unique, he stressed that, unlike other products people can decide to buy, they don’t know when they’ll need health care. If they are uninsured, he said, they force others to foot the bill.

“Virtually everybody in society is in this market, and you’ve got to pay for the health care you get,” he said. “The predominant way in which it’s paid for is insurance.”

Justice Antonin Scalia took on the administration’s argument that insurance premiums will skyrocket if healthy people aren’t paying into the system. He said the same argument could be made for the decision to not purchase a car.

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