No avoid­ing death, tax — or health care?

Jus­tices ask about man­date in mar­ket

The Washington Times Daily - - Front Page - BY PAIGE WIN­FIELD CUN­NING­HAM

Get­ting to the crux of chal­lenges to Pres­i­dent Obama’s health care over­haul Tues­day, the Supreme Court spent the sec­ond day of oral ar­gu­ments grap­pling over whether the gov­ern­ment can re­quire Amer­i­cans to buy cov­er­age — and mak­ing clear that they want the gov­ern­ment to show lim­its to the new­found power it seeks.

In a two-hour hear­ing be­fore a packed court­room with ar­gu­ments rang­ing from broc­coli to cell­phones, the nine jus­tices also wres­tled with ques­tions of whether the law merely reg­u­lates an ex­ist­ing health care mar­ket or whether, for the first time, it forces peo­ple into a mar­ket.

At stake is the law’s in­di­vid­ual man­date, which re­quires most Amer­i­cans

to ob­tain cov­er­age or pay a penalty. The ad­min­is­tra­tion says the man­date is nec­es­sary to fix the in­sur­ance mar­ket, while chal­lengers say it crushes in­di­vid­ual lib­erty by re­quir­ing peo­ple to buy some­thing just be­cause they’re alive.

“That changes the re­la­tion­ship of the gov­ern­ment to the in­di­vid­ual in a very fun­da­men­tal way,” said Jus­tice An­thony M. Kennedy, whose vote is con­sid­ered the most piv­otal.

A key test of Mr. Obama’s chief do­mes­tic re­form, the case is also widely re­garded as a cru­cial de­ter­mi­nant of whether the gov­ern­ment has over­stepped its con­sti­tu­tional bounds. Jus­tices on Mon­day heard ar­gu­ments over whether an ar­cane 19th-cen­tury tax law would pre­vent them from reach­ing a decision on the case al­to­gether. On Wed­nes­day, the court will hear chal­lenges to the law’s ex­pan­sion of Med­i­caid.

Tues­day’s ar­gu­ments were fo­cused on the in­di­vid­ual man­date and whether it’s an ap­pro­pri­ate ap­pli­ca­tion of the Con­sti­tu­tion’s com­merce clause.

For much of the hear­ing, the jus­tices’ ques­tions seemed to fo­cus on whether there are lim­its to the new power sought by the gov­ern­ment, chal­leng­ing Solic­i­tor Gen­eral Don­ald B. Ver­rilli Jr. to de­scribe some­thing the gov­ern­ment can’t do if it can re­quire peo­ple to buy in­sur­ance.

One af­ter the other, they brought up pur­chases that the gov­ern­ment hy­po­thet­i­cally could man­date, such as burial ser­vices, cell­phones and broc­coli.

Jus­tice Sa­muel An­thony Al­ito Jr. said he doesn’t see any dif­fer­ence be­tween man­dat­ing health in­sur­ance ver­sus man­dat­ing burial in­sur­ance. Both are nec­es­sary to make sure health care or fu­neral costs aren’t shifted on to other peo­ple, he said.

“Most peo­ple are go­ing to need health care,” he said. “Al­most ev­ery­body. Ev­ery­body is go­ing to be buried or cre­mated at some point. What’s the dif­fer­ence?”

He ap­peared un­con­vinced by Mr. Ver­rilli’s an­swer that when some­one with­out in­sur­ance needs health care, it af­fects the en­tire health care mar­ket by spread­ing the costs and ul­ti­mately push­ing up the price of pre­mi­ums.

Chief Jus­tice John G. Roberts Jr. asked whether the gov­ern­ment could re­quire cit­i­zens to buy cell­phones so they could ac­cess po­lice, fire and am­bu­lance ser­vices. “So can the gov­ern­ment re­quire you to buy a cell­phone be­cause that would fa­cil­i­tate re­spond­ing when you need emer­gency ser­vices?” he said. “You can just dial 911 no mat­ter where you are?”

Manda­tory cell­phone pur­chases isn’t a method of pay­ment, while health in­sur­ance is, Mr. Ver­rilli replied. En­deav­or­ing to frame the health care mar­ket as en­tirely unique, he stressed that, un­like other prod­ucts peo­ple can de­cide to buy, they don’t know when they’ll need health care. If they are unin­sured, he said, they force oth­ers to foot the bill.

“Vir­tu­ally ev­ery­body in so­ci­ety is in this mar­ket, and you’ve got to pay for the health care you get,” he said. “The pre­dom­i­nant way in which it’s paid for is in­sur­ance.”

Jus­tice An­tonin Scalia took on the ad­min­is­tra­tion’s ar­gu­ment that in­sur­ance pre­mi­ums will sky­rocket if healthy peo­ple aren’t pay­ing into the sys­tem. He said the same ar­gu­ment could be made for the decision to not pur­chase a car.

“If peo­ple don’t buy cars, the price that those who do buy cars pay will have to be higher,” he said. “So you could say in or­der to bring the price down, you are hurt­ing these other peo­ple by not buy­ing a car.”

The jus­tices also posed rig­or­ous ques­tions to Paul Clement and Michael Carvin, at­tor­neys for the Na­tional Fed­er­a­tion of In­de­pen­dent Busi­nesses and 26 states, prob­ing for an­swers to why they say the gov­ern­ment can’t re­quire Amer­i­cans to buy cov­er­age ahead of time to pay for their own health care.

The chal­lengers to the Af­ford­able Care Act say the gov­ern­ment is forc­ing healthy Amer­i­cans who may want to buy only catas­trophic in­sur­ance or no in­sur­ance at all to help shoul­der the bur­den of health care costs for those who are older and sicker.

The ad­min­is­tra­tion says the act does not force any­one into the health care mar­ket. In­stead, ad­min­is­tra­tion of­fi­cials say, they are just mak­ing sure peo­ple pay for the health care that they even­tu­ally will need.

“When you are born, and you don’t have in­sur­ance, and you will in fact get sick, and you will in fact im­pose costs, have you per­haps in­vol­un­tar­ily — per­haps sim­ply be­cause you are a hu­man be­ing — en­tered this par­tic­u­lar mar­ket?” Jus­tice Stephen Breyer asked Mr. Carvin.

“If be­ing born is en­ter­ing the mar­ket, then I can’t think of a more ple­nary power Congress can have, be­cause that lit­er­ally means they can reg­u­late ev­ery hu­man ac­tiv­ity from cra­dle to grave,” Mr. Carvin replied.

Draw­ing a com­par­i­son be­tween man­dat­ing in­sur­ance and in­oc­u­la­tions, Jus­tice Breyer asked Mr. Clement whether Congress could re­quire Amer­i­cans to get in­oc­u­lated against a plague sweep­ing the coun­try.

“If it turned out there was some ter­ri­ble epi­demic sweep­ing the United States . . . you’d say that fed­eral gov­ern­ment doesn’t have the power to get peo­ple in­oc­u­lated, to re­quire them to be in­oc­u­lated?” Jus­tice Breyer asked, to which Mr. Clement re­sponded no, say­ing the com­merce clause doesn’t give the gov­ern­ment that au­thor­ity.

Some of the more con­ser­va­tive judges expressed dis­com­fort with the idea that Amer­i­cans should be re­quired to pur­chase in­sur­ance plans, say­ing that some will never need all of the ben­e­fits that plans must of­fer un­der the law.

“You’re re­quir­ing peo­ple who are never go­ing to need pe­di­atric ser­vices or ma­ter­nity ser­vices to par­tic­i­pate in that mar­ket,” Chief Jus­tice Roberts said.

But Jus­tice So­nia So­tomayor pointed out that the gov­ern­ment re­quires ac­ci­dent in­sur­ance in or­der to drive a car even though most peo­ple never get into ac­ci­dents.

“The vast ma­jor­ity of peo­ple have never got­ten into an ac­ci­dent where they have in­jured oth­ers, yet we pay for it du­ti­fully ev­ery year on the pos­si­bil­ity that at some point we might get into that ac­ci­dent,” she said.

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