March 27, 2012

Conservative Supreme Court justices pounced on the central issue of Obamacare Tuesday, asking pointed questions about whether the government was overreaching with a mandate forcing all Americans to buy health insurance.

 

A potential swing vote on the court, Justice Anthony Kennedy, asked whether the mandate would allow the government to make citizens buy other products — such as food.

 

Such sharp questioning by the Supreme Court's conservative justices has cast serious doubt on the survival of the individual insurance requirement, which is at the heart of President Barack Obama's historic healthcare overhaul.

 

Arguments at the high court Tuesday focused also on whether the insurance requirement "is a step beyond what our cases allow," in the words of Justice Kennedy.

 

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He and Chief Justice John Roberts are emerging as the seemingly pivotal votes.

 

Justices Antonin Scalia and Samuel Alito appeared likely to join with Justice Clarence Thomas to vote to strike down the key provision.

 

The four Democratic appointees seemed ready to vote to uphold it.

 

SCOTUSblog’s Tom Goldstein, a prominent Supreme Court litigator and blogger, declared that “there is no fifth vote yet” for the mandate.

 

“It is essentially clear that the four more liberal members of the court will vote in favor of the mandate. But there is no fifth vote yet. The conservatives all express skepticism, some significant. They doubt that there is any limiting principle,” Goldstein wrote, adding, “The individual mandate is in trouble — significant trouble.”

 

Critics of Obamacare argue that the mandate opens the door to the government forcing Americans to buy just about anything else it feels might improve health or lower costs.

 

Solicitor General Donald Verrilli Jr. was asked by the court whether the government could require the purchase of certain food, cellphones, or burial insurance, according to news reports.

 

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

 

During questioning, three liberal-leaning justices — Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor — seemed to be persuaded of the law’s constitutionality and questioned the conservative argument.

 

Ginsburg noted that forcing people to buy insurance is much different than forcing them to buy food, as insurance lowers costs for all consumers. The government has a right to regulate such costs passed on to others, she suggested.

 

The central issue of Obamacare is not only a healthcare fight but a bitter political fight between Democrats and Republicans, one that is likely to be a focal point of the fall presidential election. Americans, a new poll suggests, overwhelmingly are against the individual mandate.

 

A full 66 percent of those polled opposed the mandate, with just 28 percent in favor, when asked if “the federal government should or should not be able to require all Americans to obtain health insurance or else pay a fine,” according to the United Technologies/National Journal Congressional Connection Poll, released today.

 

When asked about the law in general, about half wanted the whole plan tossed. Even among key Democratic groups, discontent over Obamacare was high: the majority of nonwhite adults, about three-fifths of young people, and two-thirds of college-educated white women were in opposition to the plan.

 

Along party lines: Democrats opposed the mandate by a surprising 4 percentage points — 48 to 44 percent. Two-thirds of independents were against the mandate, and Republicans opposed it by 15-to-1, according to the National Journal.

 

An ABC News and Washington Post poll conducted earlier this month signaled similar discontent over the law.

 

Obamacare relies heavily on the Commerce Clause, which allows the government to regulate commercial activity among the states. Opponents say the government is abusing its power by forcing people to enroll in a healthcare plan if they feel they don’t want it or need it.

 

Also at issue is whether Obamacare can survive at all without the mandate. Both sides insist it can’t, but the 11th Circuit Court of Appeals ruled in August that without the mandate, the rest of the law, including a Medicaid expansion to cover all lower-income people, along with federal subsidies, could be implemented. This would compel the health insurance industry to accept all patients and not charge a higher premium based on health, age, or gender.

 

Patients would swell the ranks of the insured driving up costs substantially.

 

The nine justices, five appointed by Republican presidents and four by Democratic presidents, plan to hear about six hours of testimony over three days. They are expected to rule by late June.