Is the health insurance market unlike any other in that everyone will be in it eventually? If so, can the federal government require everyone to purchase health insurance or pay a fine?
Or is what Congress is doing essentially creating new commerce–beyond its authority to regulate commerce?
Those questions were at the heart of today’s second day of arguments before the U.S. Supreme Cout on the constitutionality of the Patient Protection and Affordable Care Act, the federal healthcare reform law.
Yesterday, there appeared to be consensus that the court is not blocked from hearing the suit until the mandate is in effect and someone files a challenge over having to pay the fine. Today, there was no consenus on the individual. The court appeared to be split right down the middle on the question.
The court’s usual conservatives indicated the government has gone too far. “The federal government is not supposed to be a government that has all the powers; it’s supposed to be a government of limited powers,” Justice Antonin Scalia said. “What-what is left? If the government can do this, what, what else can it not do?
Conversely, Justice Steven Breyer, who usually aligns with the court’s liberal bloc, said “I look back in history, and I see it seems pretty clear that if there are substantial effects on interstate commerce, Congress can act.”
Justice Elena Kagan: “The aggregate of all of these uninsured people are increasing the normal family premium, Congress says, by $1,000 a year. These people are in commerce. They are making decisions that are affecting the price that everybody pays for this service.
The law’s supporters held out some hope that Justices Anthony Kennedy and John Roberts might be persuadable. Kennedy wondered if the government does not “have a heavy burden of justification to show authorization under the Constitution.”
Roberts, in questioning opposing counsel, acknowledged the government’s point that “we are all going to need some kind of health care; most of us will at some point.”
Oral arguments are not always predictive of how the court will ultimately rule. We should know the answer in late June.
Tomorrow’s argument concerns whether if the individual mandate is overturned, the rest of the law can be upheld, and whether Congress overreached in requring the states to expand Medicaid coverage.