By Joan Biskupic and James Vicini
WASHINGTON--The Supreme Court confronts the core of President Barack Obama's healthcare law on Tuesday when it hears arguments on whether Congress had the power to require most people in the United States to buy medical insurance.
The two-hour session on the second day of a historic three-day oral argument will offer a first concrete look at how the nine justices view the law Obama signed two years ago and that still divides his Democrats and rival Republicans.
No past rulings are completely on point and speculation has been rampant about how the ideologically divided justices will decide the limits of congressional power to address society's most intractable problems. Not since 1936 has the Supreme Court struck down a major piece of federal economic legislation as exceeding Congress' power.
A ruling, expected in late June before the Democratic and Republican party conventions, is likely to become a flashpoint in the November 6 presidential and congressional elections.
The court's ruling on the insurance requirement could decide the fate of the massive multi-part healthcare overhaul meant to improve access to medical care and extend insurance to more than 30 million people.
On Monday the justices took up a procedural tax-law question about the timing of lawsuits and suggested by their questions that they could decide the merits of case.
The centerpiece of the Affordable Care Act is the mandate that most people buy health insurance by 2014 or pay a tax penalty. The challengers, including 26 states and a small-business trade group, contend Congress exceeded its authority to regulate commerce with that so-called individual mandate.
In more practical terms, the challengers say that if the government can force people to enter the insurance market, it would have latitude to force people to engage in other behavior, whether it be to buy American-made cars or, in a mantra of the current litigation, to eat broccoli.
The Obama administration argues that virtually everyone will need medical care and that those who opt not to buy insurance put a disproportionate burden on the system. It has defended the law as a response to a national crisis.
In the United States, annual healthcare spending totals $2.6 trillion, about 18 percent of the annual gross domestic product, or $8,402 for every man, woman and child.
The Supreme Court is deeply split on ideological and political grounds, with the five conservative Republican-appointed justices often in the majority: Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito.
The four liberal Democratic appointees are Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.
A looming point of interest for the 400 spectators who will crowd into the courtroom on Tuesday is whether that 5-4 division becomes evident or appears to splinter.
All four liberals are likely, based on their past decisions and statements, to vote to uphold the law. If that occurs, they would need only one of the conservatives for a majority. An American Bar Association legal group survey of academics and lawyers found that 85 percent thought the law would be upheld.
Among the justices most likely to become swing votes in the dispute are Roberts, a 2005 appointee of President George W. Bush who has often deferred to Congress in rulings and has signaled an interest in avoiding a deeply divided ruling.
Another conservative justice who could defy political-based assumptions is Anthony Kennedy, a 1988 appointee of President Ronald Reagan. Kennedy has straddled the middle and has most often been the swing vote when the liberals prevailed.
Based on his opinions, Justice Clarence Thomas is most likely to vote to strike down the law. Justices Scalia and Alito cannot be as easily predicted as Thomas.
CONGRESS VERSUS THE STATES
U.S. Solicitor General Donald Verrilli, the administration's top lawyer at the court, will argue that the individual mandate flowed naturally from Congress's authority to regulate commerce, including its longstanding authority in the insurance field.
In his brief to the justices, Verrilli said the law addresses an existing problem in the healthcare market brought on by the uninsured consuming health care they cannot afford.
He said that had led to at least $43 billion of uncompensated healthcare each year, much of which is passed on to people who have insurance. Verrilli estimated such "cost-shifting" adds $1,000 a year to a family's insurance policy.
Representing the 26 states is Washington lawyer Paul Clement, formerly a solicitor general under President George W. Bush. He deems the mandate "unprecedented" and said it could lead to limitless intervention by Congress in people's lives.
Washington lawyer Michael Carvin, who represents the National Federation of Independent Business, stressed in his written filings that the new law forces healthy people to purchase insurance against their will.
The Supreme Court cases are National Federation of Independent Business v. Sebelius, No. 11-393; U.S. Department of Health and Human Services v. Florida, No. 11-398; and Florida v. Department of Health and Human Services, No. 11-400.
(Reporting By Joan Biskupic and James Vicini; Editing by Howard Goller and Cynthia Osterman)
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