The conservative members of the high court -- and, most tellingly, swing vote Anthony Kennedy -- expressed reservations about the constitutionality of the "individual mandate," as it is known, during the two-hour arguments Tuesday (March 27).
If the court strikes down the mandate, also referred to as the "minimum coverage" provision, it will be faced with the question of whether to declare the entire 2010 law unconstitutional. The justices will hear oral arguments Wednesday (March 28) about whether they could sever an invalidated mandate from the rest of the measure or would need to nullify the measure in its entirety absent that provision.
The Patient Protection and Affordable Care Act (PPACA) -- as the law is known -- requires citizens, with few exceptions, to buy health insurance or pay a penalty. The case arrived at the Supreme Court after split decisions at the appeals court level over whether Congress has such authority under the latitude provided under the Constitution's Commerce Clause to exercise power over the states.
Associate Justice Kennedy -- as well as Chief Justice John Roberts and Associate Justices Antonin Scalia and Samuel Alito -- challenged Solicitor General Donald Verrilli during the arguments to explain why the Commerce Clause could be used to enact the "individual mandate."
Using words resembling those of the mandate's opponents, Kennedy asked Verrilli, "Can you create commerce in order to regulate it?" Critics of the law contend the passive act of not buying insurance does not qualify as commerce to be regulated by the federal government.
It appeared Kennedy might believe the "individual mandate" is an unheard of expansion of Congress' authority under the Commerce Clause.
Kennedy urged Verrilli to assume "this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?"
He added, "ere the government is saying that the federal government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the federal government to the individual in very fundamental way."
Kennedy, as well as other justices, questioned what limitations the Obama administration believes exist on Commerce Clause power. He asked Verrilli, "Can you identify for us some limits on the Commerce Clause?"
The administration's rationale "would not justify forced purchases of commodities for the purpose of stimulating demand," Verrilli said, adding it also "would not justify purchases of insurance ... in which insurance doesn't serve as the method of payment" for a service.
Denying the requirement is a "purchase mandate," Verrilli also denied it creates commerce, saying instead that Congress -- through the mandate -- "is regulating existing commerce, economic activity that is already going on, people's participation in the health care market, and is regulating to deal with existing effects of existing commerce."
That argument did not seem to persuade Roberts, who said, "I don't understand that distinction."
The division among the nine justices seemed obvious during the arguments. Roberts, Scalia, Alito and Kennedy seemed most skeptical in their questions of Verrilli. The justices who are considered more liberal -- Clinton nominees Ruth Bader Ginsburg and Stephen Breyer and Obama nominees Sonia Sotomayor and Elena Kagan -- challenged most often former Solicitor General Paul Clement and Michael Carvin, who represented 26 states and the National Federation of Independent Business, respectively. As is his normal practice, Associate Justice Clarence Thomas, a member of the conservative bloc, did not ask any questions.
Kennedy seemed to express a concern to Clement about the need for Congress to address a health care system in which 40 million Americans are uninsured. Clement said incentives to purchase insurance would not have produced a legal challenge but, instead, Congress tried to solve the problem "in a way that nobody has ever tried to solve an economic problem before, which is saying, 'You know, it would be so much more efficient if you were just in the market."
Kennedy said, "But they are in the market in the sense that they are creating a risk that the market must account for."
Afterward, a common response by those who sat in on the oral arguments was that the federal government did not have a good day in court. But at least some critics of Obamacare -- a commonly used term for the health care law -- did not want to make predictions.
You "can't judge by those two hours" of oral arguments, said Jordan Sekulow, executive director of the American Center for Law and Justice.
Kennedy, however, "was very skeptical of what, if any, limits would be left on federal power" if the "individual mandate" is upheld, Sekulow told Baptist Press. "Today I felt confident Justice Kennedy is very troubled" by the mandate.
"This is not something we have located before, not something we have said it is okay to do," Sekulow said in describing Kennedy's concerns.
While he offered no prediction based on the oral arguments, Sekulow said of the mandate's supporters, "I think they have to be more concerned than they thought they would have to be. ... Much more concerned than they were this time last week."
Sen. Mike Lee, R.-Utah, made a prediction, however, based on the oral arguments and Kennedy's opinions.
The son of a former U.S. solicitor general, Lee said he is "reasonably confident" Kennedy will be the deciding vote in nullifying the mandate. "He's going to say this is beyond Congress' Commerce Clause power," Lee told reporters outside the court. "I could be wrong, but I think I'm right."
The penalty for failing to purchase insurance when the law takes effect in 2014 will be $95 a person but will increase to $695 a person by 2016.
The measure -- in combination with subsequent federal rules -- not only has elicited widespread opposition because of the "individual mandate" but because of such provisions as its federal subsidies for abortion and an abortion/contraceptive mandate that critics say violates religious liberty.
The Southern Baptist Ethics & Religious Liberty Commission, as well as other pro-life and religious freedom organizations, has protested those provisions and others. For instance, the law requires insurance plans in state exchanges to not disclose their abortion coverage until people are enrolled in their plans.
The law also mandates all plans cover contraceptives and sterilizations as preventive services without cost to employees. This includes contraceptives, as defined by the federal government, that can cause abortions of tiny embryos. The rule regarding that mandate has a religious exemption critics find woefully inadequate.
As they had Monday, hundreds of demonstrators again gathered outside the court building before and after the oral arguments. This time, foes of the health-care law were out in force alongside supporters. Some of the opponents chanted, "Strike it down," while foes and backers alike carried signs expressing their viewpoints.
The final day of three days of oral arguments on the healthcare law will be Wednesday (March 28).
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