Justices question health law’s constitutionality

Several U.S. Supreme Court justices questioned the constitutionality of the requirement in President Barack Obama’s health care law that Americans acquire insurance or pay a penalty.
“The federal government is not supposed to be a government that has all powers,” Justice Antonin Scalia said early in the March 27 two-hour argument on Obama’s signature legislative victory. “It’s supposed to be a government of limited powers.”
Justice Anthony Kennedy said the requirement to obtain health coverage is telling individuals they “must act.” Kennedy, who most often occupies the court’s ideological middle ground, said, “That changes the relationship of the government to the individual in a fundamental way.”
“Do you not have a heavy burden” to show the law is authorized by the Constitution, Kennedy asked U.S. Solicitor General Donald Verrilli, who argued in the law’s defense.
The March 27 session was the second of three days of Supreme Court hearings held last week on Obama’s health care law. Twenty-six states say Congress exceeded its authority in approving the 2010 law, which would extend insurance to 32 million people and revamp an industry that accounts for 18 percent of the U.S. economy.
The court will likely rule in late June.
Verrilli, the Obama administration’s top Supreme Court lawyer, Verrilli contended that Congress can require people to buy insurance under its constitutional power to regulate the interstate health care market.
People who don’t buy health insurance and can’t afford to pay for care themselves are guaranteed emergency-room treatment when they need it, Verrilli said. People who have insurance are subsidizing them, he said. Justice Sonia Sotomayor suggested the government can require people to buy insurance ahead of time “because you can’t buy it at the moment you need it.”
The justices questioned Verrilli on whether Congress could force people to buy things such as food or burial insurance.
“Can the government require you to buy a cell phone” because someone may need to call for emergency fire or police help, asked Chief Justice John Roberts. The law requires people to buy insurance for health care services they may not need, such as newborn and maternity care or substance-use treatment, he said.
The requirement to buy insurance forces young people, who may need little health care, to subsidize care “that will be received by somebody else,” said Justice Samuel Alito.
“That’s how insurance works,” said Justice Ruth Bader Ginsburg. Later, she said, “People who don’t participate in this market are making it more expensive for those who do.”
The fate of the insurance requirement will turn partly on the court’s interpretation of the constitutional provision that lets Congress regulate interstate commerce. Justices’ opinions in previous cases only hint at how they may apply it to the insurance requirement.
The government says that every American is already part of the interstate market for health care and that the mandate requires them to get coverage to pay for treatment they’ll eventually need.
The challengers say Americans who fail to buy insurance can’t be regulated because they aren’t engaged in commerce. Congress has never before required people to purchase something, they say. •