The US Supreme Court debated the limits of the federal government’s authority as several conservative justices expressed deep scepticism over the Obama administration’s right to require every American to buy health insurance.
In the second of three days of arguments on President Barack Obama’s healthcare overhaul, several justices posed sharp questions about whether the federal government can compel citizens to purchase a product or pay a penalty. The issue has become a central political question ahead of November’s presidential election.
Justice Anthony Kennedy, widely seen as the court’s most likely “swing” voter, highlighted the significance of the issue on Tuesday by saying that allowing Congress to require people to purchase health insurance “changes the relationship of the federal government to the individual in a very fundamental way” and that the US has a “heavy burden” to prove the law is constitutional.
The questioning fell largely within ideological lines. In one exchange, Justice Samuel Alito, a conservative, criticised the mandate for requiring young and healthy people to subsidise a product that will be used for someone else. Justice Ruth Bader Ginsburg, a liberal, responded by saying “that’s how insurance works” and arguing that people who do not purchase health insurance make it more expensive for others when they cannot pay their bills.
Some legal analysts said the vigour of the questions directed at Donald Verrilli, the US solicitor-general, was a sign that mandate could be struck down, potentially unravelling the entire law.
“Four justices are pretty clearly going to vote to sustain the law’s constitutionality, but I think the other justices are giving signs of leaning the other way,” said Bill McCollum, the former Florida attorney-general who filed the first lawsuit against the reform act.
John Bash, a former clerk for Justice Scalia, said: “I can see why people who were dismissive of the challenge would be worried now. They asked tough questions on both sides.”
However, Mr Bash added that justices’ questions do not always reveal their opinions. He said balanced questioning from Chief Justice John Roberts and Justice Kennedy made it difficult to predict an outcome.
In later comments interpreted as potentially sympathetic to the mandate, Justice Kennedy said: “In the insurance and healthcare world, the young person who is uninsured is uniquely proximately 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. That’s my concern in the case.”
The court is expected to make a decision in late June. In a final day of hearings on Wednesday, the spectre of striking down the law will be raised when the justices listen to arguments about how the law can exist without the mandate. “The mandate is the linchpin to the whole thing,” said Stephen Presser, a law historian at Northwestern University.
The tenor of the discussion on Tuesday often veered into the realm of the political debates that have been gripping the US in the current presidential election season.
Justice Roberts asked Mr Verrilli to explain what limits remain on federal power if the insurance mandate is allowed. He questioned if other essential commercial activities, such as paying for burial or cremation, needed new regulation. He also expressed doubt about the breadth of the health insurance coverage provided under the mandate, alluding to the recent controversy about birth control coverage, when most costs are associated with catastrophic events.
“Your theory is that there is a market in which everyone participates because everybody might need a certain range of healthcare services, and yet you’re requiring people who are never going to need paediatric or maternity services to participate in that market,” Justice Roberts said.
Justice Antonin Scalia was the most critical of the law, probing Mr Verrilli over what other things the government could make people purchase, pointing to broccoli, gym memberships and cars as possibilities. Justice Scalia also questioned why Mr Obama had originally insisted that the healthcare law did not impose new taxation while the government was now using its power to tax as a justification for the mandate.
The mandate is meant to act as a trade-off with insurance companies, which under the law are required to cover people with pre-existing medical conditions and face caps on how much they can raise premiums. The additional cost of this is intended to be offset by the addition of more than 30m new insurance customers into the marketplace.
Mr Verrilli responded to the criticism by arguing that Congress was “confronting a grave problem” with the law and because the market for health insurance is unique, it cannot be fixed by “standard economic regulation”. He said the US government was not intending to compel people to purchase other commodities, but that insurance was different because it is a method of payment.
Paul Clement, Mr Verrilli’s counterpart representing the 26 states challenging the law, said the constitutional commerce clause that the Obama administration is pinning its hopes on was not intended to “create” commerce. The government cannot predict when young and healthy people will fall ill and therefore should not be forcing them to buy insurance.
“Those people are essentially the golden geese that pay for the entire lowering of the premium,” Mr Clement said.
The chamber was packed with political stars, with Kathleen Sebelius, the US health secretary, seated near Mitch McConnell, the Republican Senate minority leader, and Valerie Jarrett, a close aide to Mr Obama, and Eric Holder, US attorney-general, sitting nearby.
Outside, protesters and politicians swarmed the Supreme Court, seeking to add their voices to the case. In front of the courthouse, a Tea Party group sang “Socialism isn’t free, I believe in liberty,” while waving a huge US flag. A few steps away, a man in a wheelchair with pamphlets explaining his support for “Obamacare” debated a Mitt Romney supporter who opposed all government entitlements.
“I don’t see why the government should be able to tell you to buy something just because you’re living and breathing,” said Kevin Mooneyhan, a Tea Party member.
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