Supreme Court bores into health care law's mandate

WASHINGTON -- The nine justices of the Supreme Court sent an unmistakable reminder to President Obama and Congress from a packed, hushed courtroom Tuesday: When it comes to landmark statutes that must stand the test of time, such as the 2010 health care law, they will have the last word.

Questioning whether the law's central requirement that Americans buy health insurance fundamentally alters the government's relationship with its citizens, the high court's conservative justices suggested they might be willing to send lawmakers back to the drawing board just months before a presidential election — particularly if they can't find a way to uphold the law without significantly expanding the power of the federal government.

With the court's four liberal justices seemingly aligned in favor of the law, two others — Justice Anthony Kennedy and Chief Justice John Roberts— demonstrated by their questions that their votes will be pivotal when the case is decided in June. Without support from at least one of them, the law is unlikely to survive.

Inside the courtroom, Washington's movers and shakers — including Attorney General Eric Holder, Secretary of Health and Human Services Kathleen Sebelius, top White House officials and some two dozen members of Congress — watched in silence as the most significant law signed by Obama came under sharp attack by justices appointed by his Republican predecessors. Outside, hundreds of demonstrators packed onto the sidewalk in front of the marble courthouse, shouting over each other.

"It was a historic day. You could just feel it in the air," said Republican Sen. John Barrasso of Wyoming, an orthopedic trauma surgeon and one of several physicians in Congress.

The court's historic three-day, six-hour review of the issue ends today, when the justices will consider its Medicare expansion and whether the rest of the law can survive if the insurance mandate doesn't.

Tuesday's give-and-take lasted two hours, but within minutes the court's conservative wing lit into a law that was narrowly passed by Democrats in Congress using special procedures and signed by a Democratic president, some 60 years after Harry Truman had begun the effort to extend health care to all.

At issue was the law's "individual mandate," which will require most Americans to buy health insurance or pay a penalty when the law is fully implemented in 2014. The conservative justices quickly questioned whether it was an unprecedented power grab.

"Can you create commerce in order to regulate it?" asked Kennedy, most often the swing vote on the panel.

"Can the government require you to buy a cellphone because that would facilitate responding when you need emergency services?" asked Roberts.

"Do you think there is a market for burial services?" asked Justice Samuel Alito, comparing the inevitability of death with the inevitability of medical care.

And so it continued until the stroke of noon, when the black-robed justices turned and left about 400 silent onlookers to decipher their every raised eyebrow and intonation.

Republican lawmakers and constitutional scholars exulted that the court's conservatives were concerned about the precedent of requiring Americans to buy something, the other markets that could be affected and the power that would give the government over the governed. Former Florida attorney general Bill McCollum, who brought the first lawsuit against the law on the day it was signed, called the conservatives "all of the justices that we need to be on our team."

On the other side, Democrats and proponents of the health care law acknowledged the day's rhetoric had not gone their way, but they cautioned against reading too much into the justices' words. In the lower courts, they noted, two conservative jurists voiced skepticism before writing opinions that sided with the government.

And even if the court rules against the individual mandate, other parts of the law could be left standing, said Ron Pollack, executive director of Families USA, a leading health consumers group. "I think the other provisions will stand, and we will move forward with implementation," he said.

The government's biggest challenge Tuesday was selling the court on the limits of its own power. Several justices — including Roberts and Kennedy — seemed concerned that any decision upholding the insurance mandate would also significantly broaden Congress' power under the part of the Constitution that allows it to regulate interstate commerce. Without a "limiting principle" to rein in that authority, they suggested it would be hard to uphold the requirement.

Kennedy said the law "changes the relationship of the federal government to the individual in a very fundamental way," and suggested the government has a "heavy burden" in showing that it is constitutional. He pressed the Obama administration's lawyer, Solicitor General Donald Verrilli, to explain why upholding the insurance requirement wouldn't give Congress limitless authority.

"Well, then your question is whether or not there are any limits on the Commerce Clause," Kennedy said. "Can you identify for us some limits on the Commerce Clause?"

The court's liberal justices appeared more willing to accept the argument that health care presents a unique dilemma, justifying federal intervention. Justice Ruth Bader Ginsburg asked whether the mandate was necessary to keep the uninsured from passing off the costs to others.

Three of the court's conservative justices seemed more skeptical. Justice Clarence Thomas was silent, though he has consistently opposed an expansive view of Congress' powers. "Once you're into interstate commerce and can regulate it, pretty much all bets are off," Roberts said. Justice Antonin Scalia added: "What is left? If the government can do this, what else can it not do?"

That question is "the biggest hole in the government's case," said George Mason University law professor Ilya Somin. "It's pretty evident that at least five Supreme Court justices think there are serious problems with the federal government's position here. That doesn't necessarily mean that all five will vote to strike down the law."

Verrilli tried to assuage those concerns. He told the justices that Congress could only impose mandates like this one if it they're needed to "counteract risks" associated with otherwise-valid commercial regulations, or if Congress decides to regulate the "method of payment" for services.

Later in the argument, Justice Stephen Breyer interjected that he saw several ways to limit the scope of a ruling upholding the mandate. "It seems to me all of those eliminate the broccoli possibility, and none of them eliminates the possibility that we are trying to take the 40 million people who do have the medical cost, who do affect interstate commerce and provide a system that you may like or not like," he said.

The insurance mandate is central to the health overhaul. The new law bans insurers from discriminating against people with pre-existing conditions or high medical costs, either by denying coverage or inflating premiums. For insurers to do that without raising rates on everyone, they need more people buying insurance.

Administration officials put on a brave face Tuesday, but a defeat at the court would be a major setback both for Obama's policy agenda. Politically, it could be a mixed bag: bad on the surface, but serving to energize his liberal base rather than his conservative opponents.

By the end of the day, the likely breakdown of the divided court seemed familiar: Liberals backing the law, conservatives criticizing it, and Kennedy in the middle.

"It sure sounded as if the only vote in play is that of Anthony Kennedy," said Bradley Joondeph, a Santa Clara University law professor who maintains a blog site about the health care law. "I think it is fair to say, based on what we know, that the whole thing rides on Kennedy's vote."

Kennedy appeared to side with his fellow conservatives early on, but near the end of the day he noted that the uninsured play a significant role in the health care marketplace by their inaction. And Roberts, too, showed he gave at least some weight to the government's argument that the health care marketplace is unique.

At the same time, the justices also appeared ready to reject the idea that the mandate could be justified by Congress' power to impose taxes. Even three of the court's liberal justices seemed unconvinced. "Congress determinedly said, 'This is not a tax,' " Justice Elena Kagan said.