Justices signal possible trouble for health insurance mandate
By Noam N. Levey, Los Angeles Times
March 27, 2012
Reporting from Washington
The Supreme Court’s conservative justices Tuesday laid into the requirement in the Obama administration’s healthcare law that Americans have health insurance, as the court began a much-anticipated second day of arguments on the controversial legislation.
Even before the administration’s top lawyer could get three minutes into his defense of the mandate, some justices accused the government of pushing for excessive authority to require Americans to buy anything.
“Are there any limits,” asked Justice Anthony Kennedy, one of three conservative justices whose votes are seen as crucial to the fate of the unprecedented insurance mandate.
Chief Justice John G. Roberts Jr. suggested that the government might require Americans to buy cellphones to be ready for emergencies. And Justice Antonin Scalia asked if the government might require Americans to buy broccoli or automobiles.
“If the government can do this, what else can it … do?” Scalia asked.
The tough questioning of the administration’s lawyer is no sure sign of how the justices will rule when they hand down their decision in the case, Department of Health and Human Services, et al., vs. State of Florida, et al., likely in June.
But Tuesday’s arguments may signal trouble for the mandate, widely seen as a cornerstone of the law’s program for achieving universal healthcare coverage for the first time in the nation’s history.
With the court’s four liberal justices expected to vote to uphold the sweeping law, the administration will have to win over at least one of the five justices on the court’s conservative wing.
Few believe Justices Clarence Thomas or Samuel A. Alito Jr. will support the mandate. That has made Scalia, Kennedy and Roberts the focus of intense speculation for months.
Solicitor General Donald B. Verrilli Jr. tried to argue that the insurance mandate would not open the door to other requirements to buy products because healthcare is unique.
“Virtually everyone in society is in this market,” said Verrilli, who was prodded on by Justice Ruth Bader Ginsburg and other liberal justices. That means that if someone elects not to get health insurance but then gets sick, as everyone will, that person will pass along costs to everyone else, Verrilli explained.