Supreme Court health care arguments center on mandate

WASHINGTON — Supreme Court justices revealed sharp splits Tuesday on whether Congress went too far in mandating that U.S. residents buy health insurance or pay a penalty.

In a historic argument that foreshadows a closely divided election-year decision, the court exposed opposite positions about limits to Congress’ constitutional authority. For now, at least, the justices appear as divided as the country itself.

“The federal government is not supposed to be a government of all powers,” Justice Antonin Scalia said. “It’s supposed to be a government of limited powers.”

Scalia voiced undisguised skepticism about the health care law, as did his conservative colleague Justice Samuel Alito and, to a somewhat lesser extent, Chief Justice John Roberts Jr. In a potentially sobering sign for the Obama administration, the justice most commonly considered to be a swing vote made pointed observations about the insurance-buying mandate.

“When you are changing the relationship of the individual to the government in a fundamental away, do you not have a heavy burden of justification?” Justice Anthony Kennedy pressed the administration’s chief lawyer.

On the other side, several justices hinted that they were sympathetic to what Congress did to revise the nation’s health care system.

“People are getting cost-free health care, and the only way to avoid that is to get them to pay up front,” Justice Ruth Bader Ginsburg said.

With senators, congressional members and Obama administration Cabinet officials watching from inside the crowded courtroom, the two-hour argument Tuesday was the second of three days devoted to challenges of the Obama administration’s signature health care law. By several measures, it also was the most important day.

Legally, the individual mandate that Florida and 25 other states are challenging is at the heart of the 2,700-page law that passed in 2010. The mandate’s fate will shape future Congresses’ ability to invoke the constitutional authority to tax or regulate commerce.

Politically, the individual mandate still sparks the most visceral response from opponents of the health care law. Republicans insist that they’ll repeal the law, while tea party activists rallied outside the court Tuesday to show again the motivated muscle that helped the Republican Party reclaim control of the House of Representatives in 2010.

During a marathon and noisy news conference, unheard by the justices inside, opponents fiercely denounced the law they dub Obamacare, while its supporters marched, beat drums and shouted, trying to drown out the speakers.

Rep. Michele Bachmann, R-Minn., wouldn’t be deterred by the noise, as she spoke next to two little yellow flags that said, “Don’t Tread on Me,” while another woman held a sign that said, “Real Women Buy Their Own Birth Control.”

“This is the day we have been waiting for,” declared Bachmann, a former Republican presidential contender. “This is one of the most important, consequential decisions that will come before this court.”

Forty-one percent of U.S. residents surveyed this month have favorable views of the law and 40 percent have unfavorable views, the Kaiser Family Foundation found. The group’s survey also found widespread ignorance about the law and the legal challenges to it.

The Patient Protection and Affordable Care Act requires that taxpayers obtain at least a minimum level of health coverage by 2014. With some exceptions, those who don’t must pay annual fees that start at $95 in 2015 and rise to $695 by 2016; alternatively, the fee may be set as a percentage of household income.

“What matters here is whether Congress has chosen a tool that’s reasonably adapted to the problem,” Solicitor General Donald Verrilli Jr. told the court Tuesday.

The Constitution’s Commerce Clause authorizes Congress to regulate commerce “among the several states.” Since the New Deal era of the 1930s, this has been used to justify many expansions of the federal government, often on the basis that the activity being regulated “substantially affects” commerce.

Scalia, Alito and Roberts pressed Verrilli for what limits might be imposed if Congress were permitted to impose the insurance mandate. Roberts asked about requiring the purchase of cellphones to call emergency services, Alito asked about requiring burial insurance and Scalia, inevitably, asked about requiring people to buy broccoli.

“It’s an unprecedented effort by Congress to compel people to enter commerce,” agreed attorney Paul Clement, who’s representing Florida and other states. “In every other market I can think of, we let people make their own decisions.”

Today, the arguments will center on whether Congress went too far in directing the states to expand Medicaid coverage. The court also will consider today whether the rest of the law can survive if the individual mandate provision is struck down.

A decision in the case is expected by the end of June, when the court ends the term that began last October.