The centerpiece of the new federal health care law, and its most controversial part -- the individual insurance mandate -- looked to be doomed after the first hour of the Supreme Court's hearing on it Tuesday. But it seemed to rally in the second hour, and, while not exactly assured of being upheld, had conspicuous signs of new life.
When the Court's most conservative Justices started the hearing with a barrage of very hard questions for the government's lawyer, Solicitor General Donald B. Verrilli, Jr., those in the courtroom started focusing on Justice Anthony M. Kennedy, to see whether he would join in.
And, in fact, Kennedy seemed as skeptical as Chief Justice John G. Roberts, Jr., and Justices Antonin Scalia and Samuel A. Alito, Jr. If, as everyone assumes, Justice Clarence Thomas, a sturdy foe of broad congressional authority, voted against the mandate, he and those four could make a majority for a 5-4 result.
Kennedy seemed to have picked up on one of the key arguments by the mandate's challengers: the provision was not a form of regulating existing economic activity, but was in fact a form of coercion for individuals without health insurance to enter for the first time into economic activity over their objection.
Starting with the assumption that the mandate was "a step beyond what our cases have allowed," Kennedy told Verrilli that it would change "the relation of the individual to the government in this... unique way." Thus, he said, Verrilli had a "heavy burden" to justify it.
Later on, Kennedy repeated his concern about changing that core citizenship relationship in a "very fundamental way." It was not apparent that the Solicitor General, in his responses, had given the "justification" that Kennedy was seeking.
But the atmospherics of the argument changed markedly when two Washington lawyers representing the challenging states and private parties, Paul D. Clement and Michael A. Carvin, took their turns. The Court's more liberal members -- and especially Justice Stephen G. Breyer -- took up a fervent defense of the mandate as necessary to deal with the national problem of having nearly 40 million Americans without an assured way to pay for their health care, which Breyer said was burdening the entire health insurance market.
Breyer was joined, but with a little less passion, in that defense by Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, thus indicating that the mandate did have champions on the Court -- but only four in number. Only if they could draw Justice Kennedy to their side, it appeared, might they prevail.
The changed tone of the hearing may have had some impact on Kennedy. The next time he expressed his "concern" it was not about the threat to the citizen-government relationship. In a notably softer voice, the Justice said that "most questions of life are matters of degree." That was an indication, it seemed, that he was developing some flexibility in analyzing the issues surrounding the mandate.
Young and healthy Americans, Kennedy then observed, could, if they have no health insurance, be in a position that was "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." The claim that Congress could do what it did with the mandate because the health insurance industry was unique was a basic argument that Solicitor General Verrilli had made. If Kennedy was now seeing that health care financing is different, his vote might well be available for the mandate.
Although there is no hard evidence to support the notion, it is widely believed that, because of the importance of the health care debate in the nation, Chief Justice Roberts would not want the Court -- if it could be avoided -- to decide the mandate's fate on a thin 5-4 vote. Thus, if Kennedy wound up casting a vote for the mandate, there is some speculation that Roberts might well join in.
In fact, in the second hour, Roberts was reciting -- for lawyers Clement and Carvin -- some of the government's basic justifications for the requirement. Although he made clear that those were the government's points, not his personally, he spelled them out in a way that did not sound as skeptical as he had seemed in the first hour.
The result, though, is not likely to be known until the Justices release their ruling on the mandate, and other issues surrounding the new Affordable Care Act, probably late in June.
The Supreme Court's three days of hearings on health care end tomorrow. The audiotapes of those hearings, and the written transcripts, will be available later in the day on the Court's own website, www.supremecourt.gov.
Lyle Denniston is the National Constitution Center's Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court's work.
Follow Lyle Denniston on Twitter: www.twitter.com/ConDailyBlog
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| Obama | Romney | |
|---|---|---|
| Electoral Votes (270 to win) |
332 | 206 |
| Obama | Romney | |
|---|---|---|
| Total | 65,899,660 | 60,932,152 |
| Percent | 51.1% | 47.2% |
| Democrats* | Republicans | |
|---|---|---|
| Current Senate | 53 | 47 |
| Seats gained or lost | +2 | -2 |
| New Total | 55 | 45 |
| Democrats | Republicans | |
|---|---|---|
| Seats won | 201 | 234 |
Don't give me any philosophical stuff about "less government." If the right wing were really about "less government", then Bush or Reagan or any of them would have actually cut the government. They didn't--they expanded it mightily.
And they expanded the government's power mightily--powers to torture and bomb and kill and spy and "detain"--these people are not against government, nor against government power. They just want to tax YOU to pay for it, and not THEM.
So what does the mandate do? It uses government power to force people to buy health insurance from for-profit corporations--the same for-profit corporations that send armies of lobbyists to the halls of Congress and millions of dollars in bribes to our reps that they call "campaign contributions."
The corporatist right wing LOVES the mandate. LOVES IT.
So why do they have their lapdogs, the Republicans, their media mouthpieces at Fox News speak out against it?
They're doing this to scam liberals and independents into backing THEIR plan and their man, Barack Obama! And they're doing THIS to set us up for the BIG BIG day when their man, Barack Obama, signs the bill ending Medicare!
And replacing it with "Obamacare for Seniors"! You liberals like the ring of that? I KNEW you would!
We need to get this monkey off the backs of business, drive down costs and get on with how the rest of the world does it. They get better outcomes for less and capital flows to more productive use.
The real failure here was the Democrats' and the President's willingness to cave on single-payer- the system in place by all of the West's major industrialized countries. But we are captive to the insurance industry who Christmas-treed the law into a forced 40 million new customers, subsidized by taxpayers. They effectively turned a loss into a huge win by giving up very little in return.
Then there is the debate about the role of government- solution provider or enemy of liberty. Add to this the debate about economic growth and you have a deadlocked Congress and a deadlocked electorate. Until we change the paradigm (see the book America Adrift) our country will continue to be immobilized in anger and discord while healthcare, education and other needs are the casualties.
You stole my Momma's baseball bat!!"
That best describes the ACA, AKA Obamacare. President Obama did not invent the individual mandate. He copied it from a proposal by the conservative, right-wing think tank, the Heritage Foundation, which initially proposed the individual mandate back in 1989 - as a way to force everyone to assume responsibility for their own health care - rather than going to the emergency when they got sick and letting everyone else pay the bill.
So if the Supreme Court finds the individual mandate unconstitutional, what does that decision tell us about the intelligence of the Heritage Foundation?
Truth told: Obama-care is misnamed. We really need to call it Heritage-Care, after the conservative Republicans who gave us the idea.
The only issue is who is going to pay for it. Uninsured people should not be allowed to freeload off the rest of us who pay for insurance.
I think if people knew how much they were going to pay for the insurance they are going to be forced to purchase, they might be more accepting of it. After all, if we have to choose between food, shelter or medical care, we will likly forego the insurance. However, if a 27 year old making $20k annually can get insurance for $75, they may find it a bargain.
Last, if the IRS is enforcing the premium, what happens to that money? Do they use it to pay the medical bills these people rack up anyway?
At the same time, I would understand if the Supreme Court turns this down, especially the individual mandate part. Just for existing in the US, we have to purchase a commercial product? It just seems... off. We definitely need healthcare reform, but I would be okay if the Supreme Court decided that this was not the way to do it.
http://blogdredd.blogspot.com/2012/03/here-come-de-conservative-judges-3.html
Of course, the real problem comes from allowing our "free market" -- try not to laugh -- provide insurance coverage, which is a natural monopoly, like water service or a fire department. The smartest approach would be to simply provide health care to all by expanding Medicare -- which is much more efficient than private health care companies. Unfortunately, our government is based on politicians being "compensated" by big companies for various contracts, so America is forever mired in problems other nations solved decades ago.