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Justices question health care mandate

WASHINGTON — During the second of three days of oral arguments on the constitutionality of the Obama administration’s health-care reform law, the split over the constitutionality of the individual mandate was very much in evidence.

Mike Carvin (right), counsel for the National Federation of Independent Businesses, speaks with petitioner David Klemencic, who runs a flooring business in Ellenboro, W.Va., outside the Supreme Court after Tuesday’s session.

The justices of Supreme Court grilled attorneys on both sides in an effort to define the limits of Congress’ power under the Constitution’s Commerce Clause.

The administration argues that the constitutional provision grants broad authority to act — authority that surely includes the ability to require uninsured Americans to purchase health insurance or be charged a fee. Since health-care providers are required by law to give treat uninsured Americans regardless of their ability to pay, the uninsured increase the cost of health care imposed on others, and that affects commerce.

“Under the Commerce Clause, Congress [enacted] reforms of the insurance market [and] the minimum coverage provision is necessary to carry into execution those insurance reforms,” said Solicitor General Donald Verrilli Jr., during an extended two-hour oral argument session.

But states and individuals challenging the law say the clause only grants lawmakers the authority to regulate what some Americans are doing, not what some Americans are not doing. They argue that the law forces citizens to buy a product or face penalties, something unprecedented and without constitutional support.

“The Commerce Clause gives Congress the power to regulate existing commerce. It does not give Congress the far greater power to compel people to enter commerce,” Paul Clement, a partner in the Washington office of Bancroft, argued on behalf of the states challenging the law.

Serious concerns

During arguments Tuesday, Justice Antonin Scalia expressed doubt over the law’s constitutionality. Justice Clarence Thomas, silent during oral arguments for the past six years, has expressed strict views on the Commerce Clause’s power in speeches outside the Court.

On the other side, Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan seemed to lean toward upholding the law.

That left Justices Anthony M. Kennedy, Samuel A. Alito, Jr., and Chief Justice John G. Roberts Jr. as unknowns.

The chief justice expressed serious concerns on both sides.

When Verrilli argued that virtually everyone will enter the health care market at some point in their lives without warning, Roberts asked how that differed from other situations.

“The same … would be true, say, for the market in emergency services: police, fire, ambulance, roadside assistance,” Roberts said. “So can the government require you to buy a cell phone because that would facilitate responding when you need emergency services?”

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

Justices questioned whether the government could impose other mandates under the same theory: Can the law require purchasing burial insurance because we all will die? Buying broccoli so that Americans are healthier and need less medical care?

Verrilli drew a distinction.

“Health insurance is the means of payment for health care and broccoli is not the means of payment for anything,” he said.

“Can you identify for us some limits on the Commerce Clause?” Kennedy asked.

Verrilli said Congress could not pass laws to create commerce.

“Here Congress is regulating existing commerce, economic activity that is already going on, people’s participation in the health care market,” he said.

“You are not regulating health care. You are regulating insurance,” Scalia said.

Matters of degree

Clement argued that Congress was seeking to push people into the health care market, something the Commerce Clause never intended.

“One of the things Congress sought to accomplish here was to force individuals into the insurance market to subsidize those that are already in it to lower the rates,” Clement said.

But Ginsburg asked how the law differed in that respect from the creation of Social Security.

The Social Security law “required everyone to contribute,” Ginsburg noted. “It was a big fuss about that in the beginning because a lot of people said – maybe some people still do today – ‘I could do much better if the government left me alone.’”

Michael A. Carvin, a partner in the Washington office of Jones Day who represented the private plaintiffs in the case, picked up on Clement’s point.

“Whether you’re a market participant or not, they are still requiring you to make a purchase that you don’t want to do,” Carvin argued.

Sotomayor noted other examples of government regulation affecting choice.

“You can’t buy a car without emission control,” Sotomayor said “I don’t want a car with emission control. It’s less efficient in terms of the horsepower. But I’m forced to do something I don’t want to do by government regulation.”

“You are not forced to buy a product you don’t want,” Carvin said.

Kennedy expressed concern about young uninsureds.

“I think it is true that if most questions in life are matters of degree, in the insurance and health care world … the young person who is uninsured is uniquely, proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries,” Kennedy said. “That’s my concern in the case.”

Carvin said forcing young, healthy people into the market essentially forces them to subsidize less healthy people.

A ruling in the case is expected before the end of the term.

Questions or comments can be directed to the writer at: kimberly.atkins@lawyersusaonline.com

Lawyers USA is a sister publication of The Daily Record.