- 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.

“If people don’t buy cars, the price that those who do buy cars pay will have to be higher,” he said. “So you could say in order to bring the price down, you are hurting these other people by not buying a car.”

The justices also posed rigorous questions to Paul Clement and Michael Carvin, attorneys for the National Federation of Independent Businesses and 26 states, probing for answers to why they say the government can’t require Americans to buy coverage ahead of time to pay for their own health care.

The challengers to the Affordable Care Act say the government is forcing healthy Americans who may want to buy only catastrophic insurance or no insurance at all to help shoulder the burden of health care costs for those who are older and sicker.

The administration says the act does not force anyone into the health care market. Instead, administration officials say, they are just making sure people pay for the health care that they eventually will need.

“When you are born, and you don’t have insurance, and you will in fact get sick, and you will in fact impose costs, have you perhaps involuntarily — perhaps simply because you are a human being — entered this particular market?” Justice Stephen Breyer asked Mr. Carvin.

“If being born is entering the market, then I can’t think of a more plenary power Congress can have, because that literally means they can regulate every human activity from cradle to grave,” Mr. Carvin replied.

Drawing a comparison between mandating insurance and inoculations, Justice Breyer asked Mr. Clement whether Congress could require Americans to get inoculated against a plague sweeping the country.

“If it turned out there was some terrible epidemic sweeping the United States … you’d say that federal government doesn’t have the power to get people inoculated, to require them to be inoculated?” Justice Breyer asked, to which Mr. Clement responded no, saying the commerce clause doesn’t give the government that authority.

Some of the more conservative judges expressed discomfort with the idea that Americans should be required to purchase insurance plans, saying that some will never need all of the benefits that plans must offer under the law.

“You’re requiring people who are never going to need pediatric services or maternity services to participate in that market,” Chief Justice Roberts said.

But Justice Sonia Sotomayor pointed out that the government requires accident insurance in order to drive a car even though most people never get into accidents.

“The vast majority of people have never gotten into an accident where they have injured others, yet we pay for it dutifully every year on the possibility that at some point we might get into that accident,” she said.

• Paige Winfield Cunningham can be reached at pcunningham@washingtontimes.com.

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