Health Care Reform In Supreme Court: The Main Event

U.S. Supreme Court justices today begin the end of the two-year debate over the constitutionality of the Affordable Care Act's individual mandate.

The mandate requires that virtually every American, starting in 2014, have health insurance or pay a tax penalty. And virtually every American has seemed to weigh in over whether this key provision of the health care reform law is a lawful exercise of congressional power -- except for the nine men and women who, by their job descriptions, have final say over these things.

The extraordinary six hours of oral arguments scheduled over three days started on Monday, when the justices lawyered to death a technical issue that stood between them and the possibility of striking down a sitting president's signature legislative achievement for the first time in over 75 years.

During today's two-hour argument -- twice as long as the 60 minutes the court usually allots each case -- the justices will pepper each side's superlawyers with questions that will give public hints of how they will ultimately decide the case by late-June.

The court's four Democratic appointees -- Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan -- are all expected to side with Solicitor General Donald Verrilli's primary argument on behalf of President Barack Obama's administration that the mandate falls within Congress' broad power to regulate interstate commerce. The inevitable consumption of health care services by the uninsured, Verrilli will argue, substantially affects the national insurance market by shifting costs to the insured and creating the problem of skyrocketing premiums that the Affordable Care Act was designed to solve.

Justice Clarence Thomas, on the other hand, need not break his six-year streak of silence at oral argument to reiterate his oft-written antipathy towards the New Deal precedents Verrilli's argument draws upon for support.

So while there is always a vanishingly slim chance that one or two of the liberal justices will surprise the public with some pointed questions for the solicitor general, it is more likely that they will try to win over their remaining four conservative colleagues by putting the screws into the challengers' lawyers.

That may be a challenge, however, given who those lawyers are. Paul Clement, who served as solicitor general under President George W. Bush, represents the states and is widely hailed as the best Supreme Court advocate of his generation. Only 45 years old, he may be a prime candidate for a Supreme Court appointment by a Republican president unless his current slate of cases taking very conservative positions on health care, immigration, voting rights, and gay marriage will make him too controversial to confirm. Michael Carvin, a colorful veteran of the Supreme Court bar, will argue for the National Federation of Independent Business and the handful of individuals serving as private plaintiffs in the suit.

With 30 minutes each on Tuesday, Clement and Carvin will take the position made in their briefs that the mandate is a grave threat to individual liberty resting on the federal government's "unprecedented and unbounded" assertion of power to "compel individuals to engage in commerce in order more effectively to regulate commerce."

The challengers' commerce clause arguments are full of bombast and ambition, and they may yet gather the sympathies of the court's conservatives. But winning all five conservative votes is far from certain. Even if Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, and Samuel Alito believe the commerce clause cannot cover the mandate, they have all at one time or another supported far-reaching assertions of federal power under a clause of the Constitution that allows Congress to pass laws "necessary and proper" to execute its established powers.

Verrilli's secondary argument takes this tact. Congress, he notes in the government's brief, modeled the Affordable Care Act after Gov. Mitt Romney's Massachusetts plan. Romney's plan, which included a mandate, succeeded in containing costs and ensuring universal care where seven other states that attempted reforms without a mandate failed. The Obama administration maintains, therefore, that the mandate is a necessary component for Congress to assert what all parties agree to be its power to regulate the national health care market -- 18 percent of the gross domestic product.

The third and final argument Verrilli will advance is that the penalty for not obtaining health insurance constitutes an exercise of Congress' taxing power. Yet on Monday, Verrilli told the justices that the penalty was not a tax for purposes of a 19th-cenutry statute that bars suits to stop taxes until those taxes have actually been paid. And all but three of the 16 federal judges to take on the health care challenges have rejected the tax argument.

For all the anticipation surrounding Tuesday's arguments, there will be nothing said that has not already been explored by four district judges, 12 circuit judges, hundreds of briefs, and countless commentators. Instead, the big news when the spectators spill out of the Supreme Court at noon will be which arguments flew strongly enough with which justices to fuel a final flurry of speculation that will last until the court finally puts to rest the parlor games with its ruling three months from now.

Comments

[benjamin1943]

12:06 AM on 03/29/2012

A very important question is "What type of health care plan do Justices Roberts, Scalia, Thomas, and Alito have and who is paying for it?" They are asking too many stupid irrelevant questions about broccoli, etc. Are we really paying them a salary to be discussing broccoli when some Americans who cannot afford health care are suffering and dying and others are getting care without paying for it?

And, since the conservative members of the Court are so hung up on a strict interpretation of the U.S. Constitution, where does it say in the constitution that we should to pay for their health insurance?

[ivotedabsentee]

04:49 PM on 03/29/2012

[A very important question is "What type of health care plan do Justices Roberts, Scalia, Thomas, and Alito have and who is paying for it?" ]

The same plans available to all other Federal employees under the Federal Employees Health Benefit program.

[benjamin1943]

06:09 PM on 03/29/2012

and who is paying for it?

[ivotedabsentee]

04:12 PM on 04/01/2012

[The welfare programs that I am most concerned about are the ones for the rich (tax breaks for oil companies, etc.) and for the military-industrial complex.]

I agree, well to a point. I have far more support for industry if the funds are spend for research.


[ I am concerned that much of the money we spend money on defense just lines the pockets of rich politicians who are willing to send our young people to wars as long as they can line their pockets (e.g. Dick Cheney). ]

A salute from me on this.

[calcontractor10]

11:26 AM on 03/28/2012

The constitution states. Promote the general welfare of the people. Now it is Promote the general welfare of the corporations...... You 30 million with out health care you will not be alone, soon you will be joined by another 30 million.......................................

[Tim The Enchanter]

10:25 AM on 03/28/2012

"The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uniformed mass of the people. Every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. This is a state of things in which it may be said with some truth that laws are made for the few, not for the many."

James Madison, Father of the Constition, Federalist 62

[stvinw]

10:19 AM on 03/28/2012

What's next?

The government doesn't think we're getting enough vitamins in our diet, so we're mandated to buy vitamins or face a penalty?

The government doesn't think we're getting enough exercise, so we're mandated to pay
for, and attend daily workout sessions at a government-approved gym?

The government doesn't think we're doing enough for the health of the environment, so
we're mandated to buy Chevy Volts, and install windmills in our yards?

Where will it end? It needs to end at the Supreme Court in June.

Stop the madness!

[Irish georgia peach]

12:05 PM on 03/28/2012

Ahhh! The same questions I ask yesterday. I only added that eventually we will be required to turn in receipts quarterly that prove we bought the proper things - including groceries. It must stop. Enough. Fanned.

[lordclane]

10:11 AM on 03/28/2012

The entire mandate question would be moot if the backers of ACA had simply gotten the necessary revenues via a tax, with a deduction for those who already have health insurance. It's well established that the government can tax almost anyone on almost any basis whatsoever. This entire controversy derives from their determination to avoid the political cost of calling the mandate/fine combination a "tax." Of great significance now, the cost to individuals was explicitly specified NOT to be a tax, thus sacrificing the government's most powerful legal grounds for it. As the saying goes, "sow the wind, reap the whirlwind."

[sassycats61]

09:27 AM on 03/28/2012

There are so many people struggling just to make ends meet so how are they supposed to purchase health insurance when they can barely afford to pay their bills and feed their families? You have people who just fall short of qualifying for state assistance and whose employers don't offer health plans or they are too expensive....what about them? These people end up in the ER for treatment and then can't pay the bill later which can cause a garnishment of wages giving them less money to pay bills and buy food. It's an endless cycle but these people are doing the best they can. The hospitals however don't care about anyone's financial situation, all they want is to be paid. Understandable because it's a business and they are just doing their job but it can also cause people to quit their job to avoid the garnishment and then everyone is screwed. Will the circle ever be broken? At what point does someone say "Enough?"

[ivotedabsentee]

10:22 AM on 03/31/2012

[The hospitals however don't care about anyone's financial situation, all they want is to be paid.]

How many other businesses care about anyone's financial situation?

[sassycats61]

10:58 AM on 03/31/2012

Actually, I am finding out there are businesses who do care, just not the medical field. I know this because there are a few businesses where I live that know mine and have been graciously accepting monthly payments.

[duriostellaj]

09:13 AM on 03/28/2012

It sounds like the court is leaning toward doing the right thing and striking down this horror. That said it is to early to celebrate .

Either way it is a win win for the repubs. If it stands the country will be more likely to repeat 2010 and give the repubs all branches of gov t to enable repeal, Voters thought that they had stopped this when they elected scott brown but the dems changed the rules and resorted to filthy tactics, including at one time seriously considering the "deem" it passed insanity.

Voters started the job in 2010 and if obamacaare stands they will more than likely finish it in 2012..

[whitcombc]

08:31 AM on 03/28/2012

The oral arguments are confusing when you realize the Justices, wholly owned subsidiaries of huge corporate interests, are looking for a loophole because, although they are not stupid, they are the 1%. They have no idea that people decide between eating and paying a Health Care premium. So they look for a way to do the bidding of their bosses and that is why for so many of us the questions are so inane. The Broccoli argument was the pet discussion on FOX.
No matter what the outcome MONEY will decides this. It will become clear that getting rid of the mandate and thus the core of the Bill could cause higher losses for insurance than keeping it and moving forward. PREMIUM SUPPORT is what this bill contains - Taxes will go directly to cover those 30 million people who cannot scrape up $600 a month for insurance. It will pay for pre-existing conditions. It will pay for the growing 50 - 65 demographic who can't afford to pay when their company folds or they get laid off.
If the Bill gets tossed, premiums will plummet as the same situations happen without Taxpayer Support. 30 Million Premiums of $500 a month equals 180 BILLION DOLLARS A YEAR! If SCOTUS kills it there is a good chance the next step will be Single Payer under Medicare for all and THAT would mean a huge loss of premiums as well. Profits, not the Constitution, drive the opinions of the majority of the

[independentinpa]

07:33 AM on 03/28/2012

I scanned the web for info on who paid for Cheney's heart transplant. There are all kinds of stories. I think ultimetly we the taxpayer paid for it. Just like we paid for Clinton and Bush's ins. I know for a fact they have better ins than we do and will never be on a Govt ins program such as the one being propose and shoved down our throats now.

[MekhongKurt]

07:23 AM on 03/28/2012

Two years ago, when I was 58, I went o line to check out the rates at a U.S. Insurance company that offered medical insurance to American expats, which I am one of.

There was an online questionnaire for the company's computer to estimate the premium, a figure it helpfully updated at the bottom of each page.

The first age had only two questios about medically-related stuff: did I smoke, and, if so, how much per day? As I am a smoker, I answered, and did so truthfully.

My estimated premium at that point was $13,200 per year, IF I paid annually. And I hadn't even GOT to wherever the form asked about cancer. Imagine how much my premium would have skyrocketed once I put I. I had a skin cancer removed in 1999.

The killer is what I wanted: a policy with

1. A $250,000 DEDUCTIBLE,
2. A maximum payment of the same amount per claim and,
3. A maximum lifetime payout 4 payouts/$1,000,000, whicherever came first.

I also sought only local coverage in the country where I live, without any medical evacuation services. No air evacuation back to the U.S. From thousands of miles away, the other side of the planet.

With a $250,000 deductible how likely am I to EVER qualify for a dime? BTW, I pay 40% in taxes, total.

[Robert Slate]

02:32 AM on 03/28/2012

If the Supreme Court justices would read the Constitution they would see that it says government is to "promote the general welfare". Government can't do this by denying health care coverage to citizens who need it.

If the government can mandate that citizens must have a driver's license to drive so the roads are safe, and require citizens to pay taxes for garbage pick-up so garbage is not thrown in the street, it can mandate health care for its citizens so they will be healthier and live longer.

[Admiral Farragut]

06:27 AM on 03/28/2012

Apparantly SCOTUS isn't buying that.

[mykirbyroo]

07:55 PM on 03/28/2012

Is your driver's license mandated by the Federal government? Or did that edict come down from your state?

Does the Federal government require that you pay taxes for garbage pick-up? Or is that required by your city/county/state?

Chapter and verse where the Federal government requires these things of you, please.

[Robert Slate]

11:50 PM on 03/28/2012

The federal government didn't mandate driver's licenses or taxes for garbage pick-up, but the Supreme Court could rule these un-constituional just as it can rule the health care law as un-constitutional. It's just as if the federal government mandated the laws.

[doc4fitness]

01:30 AM on 03/28/2012

With ACA, no one in health care had any major influence or decision making in the bill. It was passed without reading it, and formed without real goals in mind. If you want to have effective health care reform, look at why it costs so much in the first place: liability, public demand, government interference, health insurance bureacracy, demands of patients, and the simple fact that nursing, PTs, doctors and other providers have valuable skills, which means they need to be paid well.

[skeakins]

01:29 AM on 03/28/2012

Hopefully, the unconstitutional mandate and entire bill will be repealed. It is socialized medicine and robs the American people of their freedom of choice.

[MekhongKurt]

07:25 AM on 03/28/2012

Buy any insurance you want. The ACA does NOT stop you from doing that. Saying it does is a complete lie.

[skeakins]

12:18 PM on 03/28/2012

Take the time to read the bill. There are built-in provisions that force all Americans to carry identical coverage...no matter thier needs. It won't work.

[whitcombc]

08:46 AM on 03/28/2012

Socialized Medicine is so far from this insane system I am surprised anyone would keep using this label. When the Government hires the Doctors, the Nurses, the staffs and pays them and where there is no insurance company involved - THAT is socialized. What we have is the last purely profit driven (ie Free Market, Private, Capitalist run) Health System in the world of developed nations. The Bill is designed and written BY the Comapnies that sell Insurance and Drugs. It increases their profits more predictably by forcing those 30 million people to either pay for insurance policies themselves (unlikely at $400-$1200 a month) OR have tax money pay the premiums. Before this bill the taxpayer paid anyway, but not for PREMIUMS to Insurance but directly to Hospitals and Doctors. If we had "Socialized Medicine" we would be in the minority since most Single Payer Systems make use of the same insurance companies we have here - United Health Care, BC&BS, Aetna, SunLife, MetLife, etc. But they are only allowed to make around 8% a year profit. They can't pay insane bonuses, hide their cash offshore and - guess what!? The insurance companies are quite happy and profitable. Sorry that Obama is Black. Sorry that there are no good GOP candidates. But Obama is way far right of center, further right than Reagan ever was. Definitely NOT a Socialist.

[skeakins]

12:21 PM on 03/28/2012

Actually, the left has termed a new description, ie Zimmerman being a "White Hispanic American". That makes Obama a "White Aftican American". You can drop the Black description. He just borrowed that for votes.

[skeakins]

12:34 PM on 03/28/2012

You're working too hard at sorting this out. The basic issue is that the mandate is unconstitutional. The way the bill is written now, it removes our freedom of choice...and that of employers. Not the American way.

[gulamon]

01:16 AM on 03/28/2012

Goodnight Supremes, Goodnight Unemployment, Goodnight AtomicIran, Goodnight $4 gas,
Goodnight President Romney !!

[Dodsworth Fandango]

01:32 AM on 03/28/2012

You must already be asleep........and dreaming!

[gulamon]

01:38 AM on 03/28/2012

It's a nice dream, and it is late as heck !

[manmi1]

12:48 AM on 03/28/2012

The best billboard I've seen in a long time was in the south, it stated:
That "love thy neighbor thing.... I REALLY mean it. Signed God" These right-wing pretend christians ought to sort that one out.

[Admiral Farragut]

06:30 AM on 03/28/2012

You're upset, aren't you?

[mykirbyroo]

07:52 PM on 03/28/2012

Here's one you're not going to like either:

http://bible.cc/2_thessalonians/3-10.htm