Supreme Court Reviews Health Care Reform Law: a Guide to Day 2


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For more than two years now, it’s been the nation’s multibillion-dollar question: Can the federal government force Americans to buy health insurance or pay a fine if they don’t?

Banking that the answer is yes, the Obama administration constructed its landmark health care reform law around that central pillar. On Tuesday, the Supreme Court will hear arguments on whether the individual mandate should be ruled unconstitutional and toppled before it goes into effect in 2014.

Republican leaders — along with 51 percent of the rest of the nation, according to the latest Kaiser Family Foundation tracking poll — have their fingers crossed for a demolition. A mere 28 percent think it should stand.

On this second day of health care reform arguments before the Supreme Court, we turn once again to Marcia Coyle of the National Law Journal for a preview of the day’s action:

Marcia, what can you tell us about Tuesday’s arguments?

[Tuesday] is really the “main event” from the perspective of many organizations, politicians, businesses and individuals who have been involved with or just have followed the debate over the constitutionality of the new health care law.

The justices will examine the constitutionality of the law’s minimum coverage requirement, or what has become better known as the ‘individual mandate’ to purchase health insurance. The provision would require eligible Americans to obtain insurance by Jan. 1, 2014, or pay a penalty with their income tax return. The court has scheduled two hours of argument.

Two federal appellate courts upheld the constitutionality of the mandate. One struck it down, and a fourth ruled that it was premature to consider challenges to the mandate. The Supreme Court now has the opportunity to resolve those conflicting decisions.

What parts of the Constitution will be in play during the arguments?

We expect to hear much discussion about the scope of Congress’ powers to legislate under the commerce clause, the necessary and proper clause, and the general welfare clause.

The commerce clause is a major source of Congress’ lawmaking power, and it will loom large in [Tuesday’s] arguments because Congress relied primarily on that clause as the basis for its authority to enact the new law. In interpreting the scope of Congress’ power under that clause, the Supreme Court has said that Congress may regulate the channels of interstate commerce, the instrumentalities and persons or things in interstate commerce, and activities that substantially affect or relate to interstate commerce. That last category will be particularly important in today’s arguments.

Who will appear before the justices?

During the two hours of argument, the justices will hear from three lawyers. Returning to the podium after [Monday’s] arguments is the solicitor general of the United States, Donald Verrilli Jr., who will defend the mandate for one hour. The challengers have divided the second hour between former Bush administration Solicitor General Paul Clement, now a partner in the Washington law firm Bancroft, and Michael Carvin, a partner in the Washington office of Jones Day. Clement is representing 26 state attorneys general in their challenge to the law, and Carvin represents the National Federation of Independent Business and four private individuals.

What are their main arguments?

The government argues that the health care law is classic regulation of economic conduct. It expands access to health care services and controls health care costs by reforming the terms on which health insurance is offered and the means of payment for health care services. The mandate is part of that comprehensive interstate scheme by regulating how health care use is financed. Within that scheme, the mandate regulates economic conduct with a substantial effect on interstate commerce.

The United States also argues that the mandate is necessary and proper to carry out the law’s insurance reforms. And it contends Congress’ taxing power is an independent ground for upholding the mandate. The mandate operates as a tax law, and the only consequences for failing to have minimum coverage are tax consequences.

The challengers argue that the Constitution gives Congress the power to regulate commerce and not the power to compel individuals to enter commerce, which is what the mandate does. The power to regulate commerce allows Congress to reach individuals only if they decide to engage in conduct that constitutes — or substantially affects — interstate commerce.

The government cannot rely on the necessary and proper clause because that clause gives Congress the authority only to use “means by which other objects are accomplished.” The power to compel individuals into commerce is exercised not to accomplish regulation of existing commerce, but rather to create commerce so that Congress may regulate it.

And the government also cannot rely on Congress’ taxing power to save the mandate because regardless of the enforcement method (the penalty for failing to have minimum coverage), the mandate itself is not a tax.

Back to the commerce clause for a moment: The Obama administration will also argue that it applies because the uninsured often cost taxpayers money, correct?

Yes, the government argues that the uninsured participate in the health care market and shift substantial risks and costs to other participants in the market. For example, it tells the justices that state and federal laws require emergency rooms to treat patients with emergency conditions. The uninsured thus participate actively in the market for health care services even when they do not pay in full. As a class, the uninsured consumed $116 billion of health care services in 2008, according to the government, and those costs were shifted to private insurers who then shifted them to insured consumers. This cost-shifting, Congress found, raises the average premium of an insured family by more than $1,000 per year.

Is the Supreme Court writing on a blank slate here as it tries to answer the constitutional question?

Not at all. Both sides in this battle look to one very old and four more recent Supreme Court decisions to bolster their arguments. I’ll give you a quick rundown on them. They all are likely to figure in the oral arguments and probably in the justices’ ultimate decision.

  • Wickard v. Filburn (1942): The court held that the government had the power under the commerce clause to order farmer Roscoe Filburn to destroy wheat crops that exceeded the legal limit under a Depression-era law designed to drive up wheat prices. He had to comply even though he grew the wheat for personal use because wheat was traded nationally.
  • U.S. v. Lopez (2005): This decision was the first in 60 years to limit Congress’ commerce clause power. The justices struck down a federal law regulating guns near school zones because the law had no connection to interstate commerce.
  • U.S. v. Morrison (2000): The court also found unconstitutional a civil damages provision in the federal Violence Against Women Act after finding it did not substantially affect or relate to interstate commerce.
  • Gonzales v. Raich (2005): The court held that Congress had the authority under the commerce clause to criminalize marijuana production and use despite California’s law allowing the use of medical marijuana because production has a substantial effect on supply and demand in the national market for marijuana.
  • U.S. v. Comstock (2010): Congress has the authority under the necessary and proper clause to enact a law requiring the commitment of sexually dangerous prisoners after they have completed their prison terms.

As you can see, only one case — U.S. v. Comstock — was decided by the court now headed by Chief Justice John Roberts Jr. He joined the 6-3 majority upholding Congress’ authority.

Any predictions on what the justices might do on the mandate question?

As you know, I never like to predict what the justices may do on the basis of oral arguments because they are just too good at playing devil’s advocate. But if everyone tunes in [on Tuesday] to the NewsHour, I’ll try to give you a sense of how the arguments went and what the justices were asking and saying. You can also read what I write and what some legal experts have to say about the arguments at my newspaper’s special Web page this week.

Watch Monday’s broadcast segment and discussion here:

Our Health Page is full of related content — including a look at what two attorneys general — Massachusetts’ Martha Coakley and Virginia’s Ken Cuccinelli — would say if they were making arguments before the high court about the individual mandate. We also have much more about the law itself, including a timeline, a report card, a cheat sheet, and a public polling update (spoiler alert: confusion abounds). If you still have questions about the law or the Supreme Court case, ask them here and on Twitter using hashtag #HCRchat. We’ll answer them in an online chat on Tuesday at 1 p.m. ET.