By Tony Mauro
Conservative justices put the Obama administration's top lawyer on the defensive on Tuesday, possibly forecasting a closer-than-expected Supreme Court decision on the constitutionality of the Affordable Care Act dividing along ideological lines.
For a full hour, Solicitor General Donald Verrilli Jr. fielded tough and sometimes hostile questions from Justices Antonin Scalia, Samuel Alito Jr. Chief Justice John Roberts Jr. and Anthony Kennedy, suggesting that they have strong concerns if not doubts about the law's individual mandate requiring most Americans to buy a minimum level of health care coverage.
Kennedy, often a swing vote on the court, said the mandate is "unprecedented" and requires a "heavy burden of justification" from the government as to its constitutionality, because it forces individuals to buy a product. The law changes the relationship between government and the individual, Kennedy said. Verrilli repeatedly portrayed the mandate as a valid regulation of the health care market, but several justices appeared unconvinced. Justice Scalia likened the law to a requirement that people buy broccoli or do regular exercises.
Bancroft partner Paul Clement and Jones Day partner Michael Carvin, by contrast, were hit with fewer questions, except from liberal Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Breyer said Congress was addressing "a national problem" in a way that he seemed to believe was constitutional.
Under the individual mandate, all citizens — except for prisoners and those who have a religious objection — must purchase a minimum level of health insurance, though for those who cannot afford it, the law would provide subsidies to pay for it. The U.S. Court of Appeals for the 11th Circuit declared this provision unconstitutional, because it forces individuals to enter into commerce, rather than regulating existing commercial activity. The purpose of the requirement was to widen the revenue base for health care to help pay for other reforms in the law.
Tomorrow, the Court will consider the fate of the rest of the health care law if the individual mandate is struck down. It will also hear arguments over the law's expansion of the Medicaid program for the poor and disabled. Private plaintiffs and 26 states claim the Medicaid provision, which would subsidize the costs the states would incur, intrudes on the power of states by coercing them to accept a federal program they do not want. On Monday, the Court weighed the threshold question of whether it had jurisdiction to rule on the challenges to the individual mandate.
For continuing updates and background on the arguments, visit our health care hub at www.nlj.com/healthcare.