Justices Seem Skeptical of Individual Mandate in Supreme Court Health Care Arguments

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.

Comments

[Sidney Gendin]

Perhaps the learned Justices ought to have explained why being forced to buy health insurance is more onerous than being forced to buy auto insurance.

[Wayne Isaacks]

Buying broccoli ( and eating it ) and doing regular exercise has a hope of relieving the health erosion of our population, and so it is a more useful individual mandate. Of course, once you allow the federal government to regulate citizen behavior to the level of detail of the Affordable Care Act, particularly with mandatory injunctions, rather than a prohibition...well, there is no difference, so mandate the behavior that works to promote health, thereby reducing the healthcare costs born by all. Hmmm. Grandma government..

[Avon]

I'm disappointed.
It sounds like both wings of the Court are parroting what they've read in USA Today and other similar legal authorities.

How come none of the Justices (except maybe Thomas) had any doubts about any kind of mandate until the last few years? (Don't answer that. I know that almost nobody had any such doubts until the last few years.)