Key Justices Skeptical of Health Care Mandate

Key Justices Skeptical of Health Care Mandate

By Erin McPike - March 28, 2012

Legal analysts say Tuesday's oral arguments at the Supreme Court indicate that the court will likely deem the national health care law’s individual mandate unconstitutional.

In the second of three days of high-stakes hearings, the nine justices questioned government attorneys specifically about the mandate, which requires Americans to purchase health insurance. It is also the piece of the law that has drawn the most fire from opponents. Throughout the blogosphere and all over cable news, the same theme emerged: Court watchers sensed nothing but skepticism from key justices and deduced that they will pull the plug on the provision.

CNN chief legal analyst Jeffrey Toobin said, “This law looks like it is going to be struck down. I am telling you: All of the predictions, including mine, that the justices would not have a problem with this law were wrong.”

Justice Anthony Kennedy’s line of questioning caught most of the attention, as he has been the “swing” vote in many cases that have divided the court evenly between conservative and liberal members.

Kennedy interrupted U.S. Solicitor General Donald Verrilli’s argument defending the law with just the second question of the day: “Can you create commerce in order to regulate it?” he wanted to know.

“That is not what is going on here,” Verrilli answered. “What is being regulated is the method of financing the purchase of health care. That itself is economic activity with substantial effects on interstate commerce.”

Other justices piggybacked on Kennedy’s question, likening health care to food, transportation and emergency services and asking whether the government can require Americans to purchase anything that would satisfy those basic human needs. In other words, is the government creating a market for insurance when there isn’t one for Americans who don’t already have it?

Verrilli argued that most every American will require health care at some point in their lives, which is why such a market already exists. But Chief Justice John Roberts pointed out that it is unknown if a person would ever need a heart transplant. In the same vein, he said, people also may need emergency assistance but cannot know that in advance, leading him to ask if the government can require Americans to purchase cell phones in order to call rapid responders, should the need arise.

Verrilli answered: “I don’t think we think of that as a market. This is a market. This is market regulation.”

Justice Samuel Alito joined in, pointing out that there must be a market for burial services, as well, because death is a certainty. A defensive Verrilli replied that such a cost wouldn’t shift to others, but Alito disagreed.

Kennedy jumped back in and tried to get Verrilli to concede that there is a “heavy burden of justification to show authorization under the Constitution” because the mandate changes “the relation of the individual to the government” in what he called a unique way.

As the arguments continued, another point of contention was whether the penalty for not purchasing insurance becomes a tax and whether, therefore, the mandate itself constitutes a tax. But liberal members of the court asserted that that isn’t the case because the penalty would not be collected in order raise revenue for the government.

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Erin McPike is a national political reporter for RealClearPolitics. She can be reached at Follow her on Twitter @ErinMcPike.

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