Well, it's the moment that both sides of the debate have been eagerly awaiting. Challeneges to the healthcare law based on the constitutionality of the
And word of warning, pay-walls are beginning to come into full effect over on the Times, so my copying the articles here are ever more important =p
The New York Times
March 27, 2012 Hard Questions From Justices Over Insurance Mandate By ADAM LIPTAK
WASHINGTON – With the fate of President Obama’s health care law hanging in the balance at the Supreme Court on Tuesday, a lawyer for the administration faced a barrage of skeptical questions from four of the court’s more conservative justices.
“Can you create commerce in order to regulate it?” Justice Anthony M. Kennedy asked the lawyer, Solicitor General Donald B. Verrilli Jr., only minutes into the argument.
Justice Antonin Scalia soon joined in. “May failure to purchase something subject me to regulation?” he asked.
Chief Justice John G. Roberts Jr. asked if the government could compel the purchase of cellphones. Justice Samuel A. Alito Jr. asked about forcing people to buy burial insurance.
The conventional view is that the administration will need one of those four votes to win the case, and it was not clear on Tuesday that it had captured one.
The court’s four more liberal members – Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan – indicated that they supported the law, as expected. Justice Clarence Thomas, who asked no questions, is thought likely to vote to strike down the law.
Everything about the argument was outsized. It was, at two hours, twice the usual length. The questioning was, even by the standards of the garrulous current court, unusually intense and pointed. And the atmosphere in the courtroom, which is generally subdued, was electric.
The legal question for the justices was whether Congress had exceeded its constitutional authority in requiring most Americans to obtain insurance or pay a penalty. The practical question was whether Mr. Obama’s signature domestic achievement would survive.
The law is the most ambitious piece of social legislation in generations. In attempting to deliver health care to tens of millions of Americans without insurance, it relied on a controversial mechanism at the center of Tuesday’s arguments, the individual mandate.
Justice Ginsburg said the mandate was a response to the fact that uninsured people receive free health care that ends up being paid for by others. “They are making the rest of us pay,” she said.
Justice Sotomayor said that Americans would not stand for a system in which children in danger of dying were turned away from emergency rooms.
But Justice Kennedy said the requirement to obtain insurance was unprecedented, giving rise to “a heavy burden of justification.”
Mr. Verrilli responded that the health care market was unique and that regulating how people pay for services they are virtually certain to use at some point in their lives was well within the authority granted to the federal government by the Constitution, which gives Congress specified powers, reserving the rest to the states and to the people. The two powers at issue in the case, set out in Article I, Section 8, concern the regulation of interstate commerce and the imposition of taxes.
The administration’s arguments concerning the tax power did not gain much traction, and most of the two-hour argument concerned the Commerce Clause, which gives Congress the power to regulate commerce “among the several states.”
The question there, Justice Kennedy said, was whether there were “any limits” to Congressional power under the commerce clause, adding that he was concerned the health care law required individuals to perform “an affirmative act.”
Justice Kennedy’s questioning is famously hard to read, and near the end of the argument he noted that “most questions in life are questions of degree.” But the great weight of his questioning was skeptical.
Justices Scalia and Alito were consistently hostile to the law, Chief Justice Roberts a little less so.
Asked about whether there were any limits on federal power under the commerce clause under the administration’s theory, Mr. Verrilli noted two, in a somewhat convoluted answer. Congress has the authority to enact a comprehensive response to a national economic crisis, he said. And the health care law concerns only how who people bound to use health care will have to pay for it.
The Supreme Court has read the commerce clause broadly, saying it allows Congress to limit how much wheat may be grown on a family farm and to punish the cultivation of home-grown marijuana.
There have been only two modern exceptions to that broad interpretation. In 1995, the court struck down a federal law regulating guns near schools. In 2000, it struck down a federal law allowing suits over violence against women. In both cases, the court said the activity sought to be regulated was local and noncommercial.
On Tuesday, Paul D. Clement, representing the 26 states challenging the law, said none of those rulings contemplated requiring people to enter a commercial market.
Michael A. Carvin, representing private challengers, said that if the Supreme Court upheld the mandate, Congress would be free to regulate all human activity “from cradle to grave.”
As the article points out, the administration's argument is hoping to get one of the 'swing' judges, in this case most likely Kennedy, to side with the four 'liberal' judges (Ginsberg, Sotomayor, Kagan, Breyer) over the four conservative (Scalia, Roberts, Alito, Thomas). The administration's lawyer doesn't seem to have done good so far with convincing Kennedy it appears.
The whole ordeal its been amusing imo. At the beginning the whole debate was over 'socialized' medicine even though those things weren't even in the major drafts of the bill, and this perception continues to persist. Thankfully the groups came to a realization of this and became to shift more to whether or not the individual mandate from the government is constitutional.
As an aside, the whole history of individual mandates is rather peculiar, going from something many Republicans supported as an alternative against attempts at single-payer healthcare in the 80s and 90s, and holding on to it well until 2009 when the healthcare debates went into over swing. Even in the primaries, Hillary Clinton positioned herself against Obama's championing of the mandate-based healthcare solution in favor of the single-payer solution.
Health-care provision at center of Supreme Court debate was a Republican idea By N.C. Aizenman,
As the Supreme Court moves Tuesday to the heart of the challenge to President Obama’s signature health-care law, there is a curious twist: The case largely rests on the constitutionality of a provision that originated deep in Republican circles.
The individual insurance mandate, which requires virtually all Americans to obtain health coverage or pay a fine, was the brainchild of conservative economists and embraced by some of the nation’s most prominent Republicans for nearly two decades. Yet today many of those champions — including presidential hopefuls Mitt Romney and Newt Gingrich — are among the mandate’s most vocal critics.
Meanwhile, even as Democratic stalwarts warmed to the idea in recent years, one of the last holdouts was the man whose political fate is now most closely intertwined with the mandate: President Obama.
“The ironies to this story are endless and everywhere,” said John McDonough, a professor at the Harvard University School of Public Health who, as a Senate Democratic staffer, played a key role in drafting the law.
The tale begins in the late 1980s, when conservative economists such as Mark Pauly, a professor at the University of Pennsylvania’s Wharton School of business, were searching for ways to counter liberal calls for government-sponsored universal health coverage.
“We wanted to find an alternative that was more consistent with market-oriented economic ideas and would involve less government intervention,” Pauly said.
His solution: a system of tax credits to ensure that all Americans could purchase at least bare-bones “catastrophic” coverage.
Pauly then proposed a mandate requiring everyone to obtain this minimum coverage, thus guarding against free-riders: people who refuse to buy insurance and then, in a crisis, receive care whose costs are absorbed by hospitals, the government and other consumers.
Heath policy analysts at the conservative Heritage Foundation, led by Stuart Butler, picked up the idea and began developing it for lawmakers in Congress.
By 1993, when President Bill Clinton was readying his major health-care overhaul bill, the Heritage approach — subsidizing and facilitating the purchase of private health plans, while using the individual mandate to maximize participation — had gelled as the natural Republican alternative.
Then-Sen. John H. Chafee (R-R.I.) formally proposed it in a bill that attracted 20 Republican co-sponsors; the bill foundered once Clinton’s effort unraveled. But the idea of the mandate gained currency in the ensuing years as Democrats chastened by the failure of the Clinton plan began considering new solutions more likely to attract bipartisan support.
The Massachusetts plan
That process came to a head in 2004 when Mitt Romney, then governor of Massachusetts, turned to then-Sen. Edward M. Kennedy (D-Mass.) for help adopting a health-care overhaul for the state that was largely based on providing residents with government subsidies to buy private insurance.
The plan, signed into law in 2006, regulated insurance companies to a degree beyond anything Pauly had envisioned: For instance, they were barred from excluding or charging higher premiums to people with preexisting health conditions.
But this only heightened the conviction of the health-care plan’s Republican backers that an individual mandate was needed. Without it, they argued, people could wait until they were sick to buy insurance, forcing insurers to pull out of the market or cover the extra cost by massively increasing rates.
McDonough said it is hard to overstate the significance of Kennedy agreeing to take on the free-market ideas advanced by Romney.
“The alliance between Romney and Kennedy was of fundamental importance in terms of creating a level of confidence going into [the] 2008 [presidential elections] that this could actually be the bipartisan path to achieve universal health care in the United States,” he said.
The no-mandate candidate
Indeed, during the 2008 Democratic primary race, candidates Hillary Rodham Clinton, John Edwards and Obama all proposed health-care overhaul plans that shared some features of the Massachusetts system.
But while Clinton and Edwards included an individual mandate, Obama did not (although he did propose requiring parents to get coverage for their children).
Over successive debates and primary battles, Obama hammered the issue as a key difference between himself and Clinton.
“What’s she not telling you about her health-care plan?” said an advertisement for Obama. “It forces everyone to buy insurance, even if you can’t afford it, and you pay a penalty if you don’t.”
“In retrospect, I think Obama had an accurate sense of public opinion about the mandate,” said Paul Starr, a health policy expert at Princeton University, who supports the law but argues that Democrats should have come up with other policies to accomplish the goals of the mandate.
Obama’s views had evolved by December 2008, when, a month after winning the presidential election, he discussed the mandate with former Senate majority leader Thomas A. Daschle (D-S.D.), his nominee for health and human services secretary.
“To my pleasant surprise, the president-elect told us, for the first time, that he might be willing to reconsider his thinking,” Daschle wrote in his book “Getting It Done: How Obama and Congress Finally Broke the Stalemate to Make Way for Health Care Reform.”
The GOP shift
For a while the mandate also retained the support of many prominent Republicans. But as negotiations with Democrats over the health-care bill fell apart in the spring of 2009 — and Republicans spent their August 2009 recess at town hall meetings where furious tea party activists accused them of fomenting a government takeover of health care — positions on the mandate started to shift.
That September, Sen. Charles E. Grassley (R-Iowa), a co-sponsor of the 1993 Chafee bill containing the mandate and a vocal supporter of the idea just three months earlier, declared that “individuals should maintain the freedom to choose whether to purchase health insurance coverage or not.”
During floor debates over the health-care legislation that fall and winter, the mandate took a back seat to more contentious issues relating to abortion, Medicare and the expansion of government regulation.
Still, it continued to build as a political issue after the law’s adoption in 2010, as 27 states began having success with legal challenges largely centered on the mandate’s constitutionality.
Today, opposition to the mandate has become a kind of litmus test of conservative purity. Romney and Gingrich have each struggled, with mixed success, to disavow their former statements in support of it.
Intellectual authors of the idea at the Heritage Foundation have filed legal briefs contesting the mandate and have published mea culpas. “We had made a mistake,” Butler wrote, explaining that “health research and advances in economic analysis have convinced people like me that an insurance mandate isn’t needed to achieve stable, near-universal coverage.”
There is at least one remaining conservative defender: the man who helped start it all, Mark Pauly. He is no fan of the other provisions in 2010 health-care law. Still, he said, when it comes to the mandate, “personally, I think it’s wise public policy.”
Today was the third and last day of hearings. Today also concerned itself with the individual mandate, and more specifically whether it was an essential component of the law (ie if it is going to be struck down, the whole law should be struck down). There were also arguments about whether the government was overstepping its boundaries with the expansion of Medicaid funding through payment to state Medicaid programs.
On health-care hearing’s last day, Supreme Court weighs Medicaid expansion By Robert Barnes and N.C. Aizenman, Updated: Wednesday, March 28, 7:38 PM
The Supreme Court closed an extraordinary three-day review of President Obama’s health-care law Wednesday with its conservative majority signaling that it may be on the brink of a redefinition of the federal government’s power.
Justices on the right of the deeply divided court appear at least open to declaring the heart of the overhaul unconstitutional, voiding the rest of the 2,700-page law and questioning the underpinnings of Medicaid, a federal-state partnership that has existed for nearly 50 years.
Much can happen between now and the expected ruling this summer, and a far more moderate tone may emerge. Broad statements come more easily in the court’s intense oral arguments than in majority opinions. The vote appears close and the court could uphold the law.
But the rhetoric of the past three days led Solicitor General Donald B. Verrilli Jr. make an unusual and emotional plea to the justices for restraint. He asked them to respect Congress’s judgment rather than insert themselves into a partisan battle that has roiled the political landscape since the law was passed in 2010.
“The Congress struggled with the issue of how to deal with this profound problem of 40 million people without health care for many years, and it made a judgment,” Verrilli told the justices.
“Maybe they were right, maybe they weren’t, but this is something about which the people of the United States can deliberate and they can vote, and if they think it needs to be changed, they can change it.”
Verrilli made a direct appeal to Justice Anthony M. Kennedy, considered pivotal in the case because he is the conservative most often willing to side with the court’s liberal bloc. On Tuesday, Kennedy said he worried that the law’s mandate that almost every American either secure health insurance or pay a penalty undermines personal liberty and carries a “heavy burden of justification” under the Constitution.
Verrilli spoke about “millions of people with chronic conditions like diabetes and heart disease” who would be “unshackled” from their conditions and about families who would be freed from financial harm caused by high medical costs. The law will help ensure that they “have the opportunity to enjoy the blessings of liberty,” he said.
Paul D. Clement, representing Florida and 25 states objecting to the health-care law, responded that “it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not.”
The examination of the Patient Protection and Affordable Care Act was unlike any the court has conducted in decades. It has been nearly 50 years since justices have devoted so much time to a subject.
Before this week’s arguments, many lawyers who practice before the court had said privately that they thought the court’s precedents indicated that the Obama administration would emerge the victor. And the court’s four liberal justices showed themselves to be comfortable with the assertion of federal power in the law.
But there was deep skepticism among the conservatives. At times, Verrilli seemed shaken by the intensity of the questions. When Chief Justice John G. Roberts Jr. decided Wednesday that more time was needed to consider the constitutionality of expanding Medicaid, he told Verrilli that he would receive an extra 15 minutes.
“Lucky me,” Verrilli replied, evoking laughter in the crowded courtroom.
Liberal Justice Ruth Bader Ginsburg had wondered earlier in the day whether her colleagues were on a “wrecking operation” or a “salvage job” as they were deciding what to do about the rest of the law should the individual mandate be declared unconstitutional.
The court’s divisions were on vivid display Wednesday during a discussion of the law’s Medicaid expansion, which would give states more federal money if they agreed to enroll more of the poor. States can refuse, but only if they pull out of the program altogether.
The states challenging the legislation say that is not an option. The Medicaid program has grown so large that it is impossible to forgo federal funding and still provide medical care to the poor, they say.
The question before the Supreme Court now is whether the law would violate limits the court has set in the past, that the federal government cannot impose conditions “so coercive as to pass the point at which pressure turns into compulsion.”
Liberal justices clearly thought the states’ argument lacked merit.
“Why is a big gift by the federal government a matter of coercion?” asked Justice Elena Kagan, saying the government is giving the states a “boatload of money.”
Justice Stephen G. Breyer said that under Clement’s theory, any expansion of Medicaid that comes with conditions would be unconstitutional. Ginsburg pointed out that “we have never had, in the history of this country or the court, any federal program struck down because it was so good that it becomes coercive to be in it.”
But Justice Samuel A. Alito Jr. said in passing the health-care legislation, Congress operated on the assumption that the Medicaid program had become so large and essential that no state could turn down the government’s offer. “When that’s the case, how can that not be coercion?” he asked Verilli.
Kennedy added that states had “no real choice.”
Earlier, the court had considered whether the entire law should be scrapped should the individual mandate be declared unconstitutional. Even though there are many elements in the legislation that have no connection to the mandate, including funding for ongoing federal programs, Clement said the entire law should fall.
“Let’s just give Congress a clean slate,” he said.
The government argued that only two provisions of the law — a prohibition against insurers discriminating against people with preexisting conditions and a limitation on how insurers set rates — depend on the mandate. The rest of the law should stand, it said.
Again, the justices seemed to split along ideological lines.
It was in a discussion about what Congress would prefer if the mandate fell — all of the law minus the mandate, most of the law or none of the law — that the court began to discuss the political dimensions of its decision, and the partisan climate in which it operates.
Clement was greeted with laughter when he said that if the entire law was struck, it should take Congress only a few days to pass the parts on which members overwhelmingly agreed.
Later in the day, as Clement presented the arguments of the states he represented against the Medicaid provision, Ginsburg reminded him that other states had filed a brief with the court saying they want the federal expansion.
Scalia asked: “Mr. Clement, I didn’t take the time to figure this out, but maybe you did. Is there any chance at all that 26 states opposing it have Republican governors and all of the states supporting it have Democratic governors? Is that possible?”
“There’s a correlation, Justice Scalia,” Clement replied.