WASHINGTON — A skeptical Supreme Court on Tuesday sized up the signature provision of President Obama's health care law: the requirement that nearly every American buy health insurance.
The court's verdict might not come until June, but pundits and reporters raced onto the airwaves after two hours of arguments to predict that the so-called individual mandate might be dead.
CNN legal analyst Jeffrey Toobin called the argument "a train wreck for the Obama administration."
The president's lawyer had been expected to face tough questioning over what challengers believe is an unprecedented expansion of Congress' power. And yet, almost from the first word, Solicitor General Donald Verrilli had difficulty making his case.
He appeared to be distracted, interrupted himself and started again, and had to take a break to get a drink of water.
Conservative Justices Samuel Alito, Antonin Scalia and Chief Justice John Roberts quizzed Verrilli. Justice Clarence Thomas is thought to be a sure vote to strike down the law, but as usual, he did not ask any questions.
Justice Anthony Kennedy, likely to be the swing vote, also asked a series of probing questions.
"The questions are the window into their minds," said Paul Larkin, a former solicitor general who argued 27 times before the Supreme Court. If that's true, Verrilli will certainly face a divided court.
Sometimes the questions asked during arguments offer little insight into the line a justice will ultimately take, said Bruce Rogow, a Fort Lauderdale attorney who's argued 11 times before the court .
"I remember walking out of an argument feeling that I won, perhaps 7 to 2, and I lost 5 to 4," Rogow said. "Their interaction with the lawyers may not reflect their feelings about the strengths or weaknesses of the case but may be an opportunity for them to test out various thoughts."
Within the first five minutes, Kennedy focused the debate in the case of Department of Health and Human Services v. Florida, et al. He asked: "Can you create commerce in order to regulate?"
Opponents of the law say that's exactly where Congress erred. The nation's top legislative body has the power to regulate commerce, they say, but Americans who choose not to buy insurance are not engaging in commerce.
This case is unique, Verrilli said, because the health care market will include nearly every American. So although they may not buy it now, they will need it some day, he said.
Verrilli boxed himself into a narrow argument to avoid conceding that upholding the mandate might broaden Congress' power.
If Congress is permitted to force Americans to buy a product they do not want in this case, what's to prevent lawmakers from doing it in other markets? justices asked. What about burial insurance? asked Alito.
"Most people are going to need health care. Almost everybody. Everybody is going to be buried or cremated at some point. What's the difference?" he asked.
Those who do not buy health insurance have an important effect on the market, which allows Congress to regulate it, Verrilli answered. That's different from burial insurance, he said.
During his hourlong argument, Verrilli got some help from Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, all of whom are expected to vote to uphold the law.
Kagan offered that "the subsidizers eventually become the subsidized," explaining part of the government's argument for requiring the young and healthy to buy insurance now.
But Kennedy seemed to have trouble with Congress' role as Verrilli explained it.
"Here 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 a very fundamental way," Kennedy said.
Verrilli had an hour to make his argument. Paul Clement, the attorney for the 26 states, led by Florida, challenging the law, and Michael Carvin, representing the National Federation of Independent Business, followed with 30 minutes each.
The more conservatives justices grilled Verrilli, but Clement and Carvin got plenty of attention from the court's liberal wing.
What Congress did wrong, Clement said, is to force Americans who did not want to buy something to make a purchase.
WASHINGTON — "And one of the things, one of the things, Congress sought to accomplish here was to force individuals into the insurance market to subsidize those that are already in it to lower the rates," he said.
Ginsburg said the health care coverage was a lot like SocialSecurity.
"There was a big fuss about that in the beginning because a lot of people said, maybe some people still do today, 'I could do much better if the government left me alone. I'd go into the private market, I'd buy an annuity, I'd make a great investment, and they're forcing me to pay for this Social Security that I don't want,' " she said.
An easier solution, Clement said, would be to divide up the cost and charge people more for forcing insurers to guarantee coverage for every American.
Switching sides, Kennedy noted:
"But they are in the market in the sense that they are creating a risk that the market must account for."
Clement warned that creating a special justification to compel ahealth insurance purchase could haunt the court later.
"Once you open the door to compelling people into commerce based on the narrow rationales that exist in this industry, you are not going to be able to stop that process," he said.
Source: "The Palm Beach Post"