LEGAL Swing justice poses tough questions on ObamaCare at Supreme Court hearing

Swing justice poses tough questions on ObamaCare at Supreme Court hearing

By Lee Ross

Published March 27, 2012 | FoxNews.com

The man often known as the Supreme Court's swing justice posed tough questions about the scope of the controversial health care overhaul Tuesday, suggesting he might have doubts about its validity.

Justice Anthony Kennedy did not tip his hand as to how he might ultimately vote in the case -- a ruling is not expected until summer.

But on the most important day of hearings for the landmark case, the entirety of the bench was thoroughly engaged for a two-hour debate over the constitutional merits of President Obama's health care law. Based on the tenor of Tuesday's arguments, the justices appear to be closely divided and the case may ultimately come down to the views of Kennedy.

Kennedy, cutting to the heart of the debate over the so-called individual mandate -- which was the focus of Tuesday's hearing -- asked the federal government's attorney to explain what constitutional power the government had to force all Americans to obtain health insurance.

"Can you create commerce to regulate it?" Kennedy asked Solicitor General Don Verrilli. That question addressed a key issue in the case about whether Congress exceeded its regulatory authority under the Commerce Clause.

Later, Kennedy said the law was unique and felt it was "changing the relationship between the individual and the (federal) government." He acknowledged the Court normally gives Congress the benefit of the doubt on laws that it passes but in this instance there was a "heavy burden of justification" necessary for supporters of ObamaCare to prove its legal worth.

What's not clear is if the answers provided by Verrilli satisfied Kennedy's apparent doubts.

The comments and questions from the other justices generally suggested they would fall along familiar ideological divisions.

"The argument here is that this ... may be necessary, but it's not proper because it violates an equally evident principle in the Constitution, which is that the federal government is not supposed to be a government that has all powers," Justice Antonin Scalia, considered to be on the conservative side of the bench, said at one point. "That it's supposed to be a government of limited powers. And that's what all this questioning has been about. What is left? If the government can do this, what, what else can it not do?"

Obama appointee Justice Elena Kagan, though, appeared to defend the law, seemingly echoing Verrilli's point by asking, "in this context, the subsidizers eventually become the subsidized?"

At the start of his arguments, oddly interrupted by a scratchy throat, Verrilli plainly stated that "the Affordable Care Act addresses a fundamental and enduring problem in the health care system and economy."

Click here for full coverage of the ObamaCare hearings.

Click here for the full transcript of the hearing.

Click here for audio of the hearing.
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Supreme Court hearing on individual mandate tees up blockbuster decision

By Lee Ross

Published March 27, 2012 | FoxNews.com

The Supreme Court hearing Tuesday on the controversial federal health care law will be one for the history books.

After presumably clearing away a technicality which was the focus of the in-the-weeds opening day, the justices are getting down to the indisputable linchpin of the entire health law challenge and the matter that will most likely end up making legal history.

The so-called individual mandate is now under scrutiny, as the Supreme Court launched into its hearing Tuesday morning.

Though the ruling likely won't be issued for months, both sides of the argument descended on Washington for this day. At issue is the provision in the law requiring Americans to buy health insurance. And it could unravel President Obama's biggest domestic policy achievement if it's struck down.

Tuesday's arguments will present the justices the opportunity to determine how much power the federal government has in forcing Americans to purchase a product or enroll in a government program they might otherwise avoid. Washington lawmakers have never before used this power. Some say that's because it's never been this necessary; others contend it's because the authority doesn't exist.

The justices will be looking at three significant constitutional areas to determine whether the Affordable Care Act (ACA) is lawful: the Commerce Clause, the Necessary and Proper Clause and the federal government's taxing power.

The most prominent of these is the Commerce Clause, which gives the government power to regulate commercial activity among the states.

Both sides have used the Court's precedents on Commerce Clause cases to bolster their arguments. Over the years, the power has been broadly interpreted giving the feds greater authority to regulate local activities ranging from wheat production to marijuana use. But the Court has also in recent years found several narrow areas to check federal action.

In many ways, the conflict is one of perspective.

The government would like the nine justices to view the problems of uninsured people and the high costs of insurance for those who have it as a matter of vital importance to the country's future.

"This is classic economic regulation of economic conduct," Solicitor General Don Verrilli told the court, working under the theory that all people must at some point in time purchase or use health care.

The government tries to bolster its case by pointing out the economic difficulties in sustaining the old system. Verrilli says the health law was passed to address a "crisis in the national health care market." He cited numbers showing the average cost of a hospital stay for an uninsured person exceeded $22,000 and that oftentimes these individuals "can rarely cover charges of this magnitude," forcing others to cover the difference.

The contrary view pressed by the plaintiffs is more focused on an individual level and examines what activity -- or inactivity -- Congress can regulate. They agree that the federal government has every right to control commerce, but argue the feds have no constitutional authority to force people into the marketplace by making them buy a product -- health insurance -- that they don't want or feel they don't need.

"A power to regulate existing commercial intercourse is precisely what the framers sought to confer upon the new federal government," Paul Clement, a former solicitor general now representing the 26 states challenging the law, told the court.

But he then went on to argue that "the power to compel individuals to enter commerce, by contrast, smacks of the police power, which the framers reserved to the States."

It is this line of argument about unchecked authority that gives rise to the concern that an unlimited commerce power could lead to the government issuing mandates about what cars people must buy or food they must consume.

The phrase Clement will use in the courtroom is "limiting principle." It's determining where the line is drawn. For instance, we know that police officers may enter a home to search for evidence. But the Constitution limits that power by forcing the authorities to get a judge's approval with a signed warrant. Clement says that sort of limiting principle doesn't exist in the ACA and must be struck down.

In his opinion last year affirming the ACA, Judge Laurence Silberman of the D.C. Circuit Court of Appeals, said the word "regulate" very much includes the idea of requiring action of participants and non-participants alike. Silberman, widely regarded as a reliably conservative jurist, said that Supreme Court opinions over the years only addressed existing "activities" because the "inactivity" concern wasn't an issue.

Clement, in an interview with Fox News, spoke about his role in the case and made a general reference to the Silberman ruling. "You know, the other side likes to point to a couple of Republican-appointed judges who upheld the law." He then noted that a judge appointed by President Clinton, a Democrat, struck down the law in the 11th Circuit case that's now before the high court. "And I just think this shows this is a case where the judges and justices are open to persuasion, and therefore the advocacy really matters."

As with any case before the Supreme Court, there is much attention given to the justices and examining their writings in past cases with the hope of divining how they might vote. Justices Anthony Kennedy and Antonin Scalia have issued separate opinions in several Commerce Clause cases that provide some insight into their views.

Scalia concurred in a marijuana case affirming the federal government's authority to regulate a home-grown marijuana operation even though it was strictly for personal use and had no direct tie to commerce. Some liberals see the ruling as a sign that Scalia, a conservative justice, will similarly vote in favor of the health care mandate.

Clement disagreed.

"I think some people, frankly, haven't read the whole opinions they're talking about. A lot of people are very excited about Justice Scalia's opinion (in the marijuana case)," Clement said in the interview. "I look at what he wrote and I think it's actually, frankly, helpful for us in arguing this case."

But that case and others haven't directly addressed the mandate issue before the Court. Silberman and others think the one case that comes closest to the mandate question was decided by the Court in 1942.

The Court unanimously voted in favor of the government when a wheat farmer grew additional grain beyond the allowed allotment. Though Ohio farmer Roscoe Filburn grew the excess wheat for his family's own consumption, the Court ruled that he could still be regulated by the feds because that wheat (or some of it) could still be diverted to the national marketplace. The court noted that the wheat regulation was constitutional even though it forced some people to buy wheat they could otherwise provide for themselves.

But Michael Carvin, representing the National Federation of Independent Businesses and several individual challengers, said the health care case and wheat case are different. Carvin argued that Filburn's wheat production was an active effort that thwarted federal regulations, unlike someone's decision to simply not buy health insurance.

The Necessary and Proper Clause is closely related and gives the government power to implement laws to help carry out legitimate policies. In this instance the government argues the health care law is needed to provide near universal health insurance coverage at an affordable cost.

But Carvin says it doesn't matter if Congress is trying to encourage, or discourage, commerce. "It cannot regulate conduct that is not interstate commerce simply because the regulation itself would improve interstate commerce."

Just as with the Commerce Clause cases, all sides on this issue look to past precedents for guidance on their arguments. The most recent case involved a challenge to a federal law mandating civil commitment for people convicted of sex crimes who are still deemed a threat when their prison terms have ended. That ruling said the federal government's law was necessary and proper to fulfill its obligations in protecting the public.

Chief Justice John Roberts signed on to the court's majority opinion. Justice Kennedy agreed with the result but he issued his own separate write-up to emphasize that in his view, "this is a discrete and narrow exercise of authority over a small class of persons already subject to the federal power."

The ACA is anything but narrow and may give opponents of the health care law reason for hope that Kennedy, often seen as the key vote on the bench, will side with them to strike down the law.

The other fundamental constitutional battle is over whether the federal government's taxing power legitimizes the health care mandate. This area returns the Court back to the debate over whether the cost of noncompliance is a "penalty" or a "tax," an issue the Court heard Monday in a dispute over whether lawsuits challenging the ACA should be blocked until 2015. The Court signaled they should not.

Verrilli's brief says the minimum coverage provision is effectively a tax law because it is administered and enforced by the IRS, even though the law clearly says penalty.

The states argue a penalty is not a tax and therefore contend it's not constitutionally protected.

They also point out that language in the House version of the bill called it a tax, but that was scrubbed suggesting that Congress knows the difference between the two. President Obama is also quoted giving his assurance that the law isn't a tax.

However, their more fundamental argument, Clement says, is that the lawsuit is directed at the mandate and not the fine for those who don't comply. "Whether Congress enforces the mandate through a penalty, a tax, denial of federal benefits, or criminal consequences, the question concerning the constitutionality of the mandate remains the same," he said.

Of all the issues before the Court, this is the case for which the justices allotted the most time -- two hours for arguments. The Court under Chief Justice John Roberts has on occasion been willing to extend arguments beyond their scheduled time.

A transcript and audio recording will be posted on the Court's website, www.supremecourt.gov.

Click here for full coverage on the ObamaCare hearings.

Fox News' Shannon Bream contributed to this report.
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Obama appointee Justice Elena Kagan, though, appeared to defend the law, seemingly echoing Verrilli's point by asking, "in this context, the subsidizers eventually become the subsidized?"

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Why is Kagan even participating? Isn't this a conflict of interest?

Sure. But don't let THAT little technicality stand in the way. After all, she's an OBAMA appointee....

mt4design said:

Why is Kagan even participating? Isn't this a conflict of interest?

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Because she was put on the court for this very purpose.

Palmetto

Palmetto said:

Because she was put on the court for this very purpose.

Palmetto

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Bingo!

Not that I'm pessimistic about the chances of Obamacare being overturned, but this is being done in Washington, D.C., where the automaker bail-out was rammed down our throats (illegal), bank bail-outs were rammed down our throats (illigal), where the SS fund, which we've paid into for generations, is now bust broke and all-borrowed-out by other gov't agencies and programs (definitely illegal) and the Fed has had QE1 & QE2 buying Treasury Bonds that no one else would buy (shamefully illegal)! So what's one more little straw on our collective camel's back?

Kajun
(P.S.
I'm proud of myself for not using any curse words in this post. It makes me soooooooooooooooooooooo angry!)

where the SS fund, which we've paid into for generations, is now bust broke and all-borrowed-out by other gov't agencies and programs (definitely illegal)

Oh? And your alternative proposal would be?

They are going to make it look close all the way up to the end and they are going to rare waaaaaaay back and kick us square in the nuts. Plain and simple folks. They are going to put on a good show, making it look like they are divided and then they are united and then there is only on swing vote but in the end… They will favor Obamacare. Period.

It reminds me of Flashes foot race at the end of The Incredibles movie. Flash could finish the race quick and just smoke everyone there and get it over with fast. But he has to put on a good show, draw it out and make it look like he’s struggling. His parents are first telling him go go go. Then they are telling him to back off. Then they are telling him not to give up, just make it close. Second… Go for second place.


The sooner you accept the fact that Obamacare is here to stay the sooner you can get on with your life.

KKC said:

They are going to make it look close all the way up to the end and they are going to rare waaaaaaay back and kick us square in the nuts. Plain and simple folks. They are going to put on a good show, making it look like they are divided and then they are united and then there is only on swing vote but in the end… They will favor Obamacare. Period.

It reminds me of Flashes foot race at the end of The Incredibles movie. Flash could finish the race quick and just smoke everyone there and get it over with fast. But he has to put on a good show, draw it out and make it look like he’s struggling. His parents are first telling him go go go. Then they are telling him to back off. Then they are telling him not to give up, just make it close. Second… Go for second place.

The sooner you accept the fact that Obamacare is here to stay the sooner you can get on with your life.

Click to expand...

I think you're scenario is the most likely, but if...(that is a .001% chance "if")...if they do strike it down, you can rest assured something will happen. We will have to be punished.

When he uttered his socialist blather desiring to "...fundamentally transforming the United States of America..." the current WH occupant MEANT IT.

The UNconstitutional toilet paper called obamacare - which the dem-controlled Congress had to pass so we could find out what's "in it" - is
now being debated and tested for Constitutionality. It must be called out on strikes or else the gummint can and WILL control everything
given enough time.

Outside, the marxist mob is calling for o'care 'law' to be defended and upheld. How quaint.

INside, the US Constitution is being tested mightily by the marxist muppet mob. But it is the US Constitution
that must be defended and upheld against the assault this unworthy toilet paper.

If the marxists get away with this - the US loses as the vast majority of Americans simply
DO NOT WANT THIS marxist travesty.

Amusing and highly instructive to see the media whore howling and railing against the surviving conservative justices...while
completely ignoring the "minds wide shut" liberals who will not seriously consider the arguments made AGAINST the obama toilet paper.

Look for an unexpected vacancy on the Court in the next month or so.

Oreally said:

Look for an unexpected vacancy on the Court in the next month or so.

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Ain't THAT the truth...

Here's what I don't understand...

They are going to force me to buy insurance. Right now, I'm self-employed and I don't have any. That's not smart, but I can't find anywhere to work other than through independent contracting that pays enough for me to struggle to say afloat.

OK. I've had 10 major surgeries. That was back when I had great insurance. The total bills were $987k. They dropped me due to the fact that I maxed out the insurance.

I cannot buy insurance now. I am considered as a high risk (even though my problems are apparently resolved). Nobody will touch it for any reasonable cost. What will change under ObamaCare that will suddenly make insurance for me something that would be reasonable in cost? Nobody who supports this nonsense seems to know how to answer that question.

What if they mandate it and I simply cannot afford it?

IMHO, this is simply a new form of taxation.....

Justices signal deep trouble for health care law

Justices signal deep trouble for health care law

WASHINGTON — The fate of President Barack Obama's health care overhaul was cast into peril Tuesday as the Supreme Court's conservative justices sharply and repeatedly questioned its core requirement that virtually every American carry insurance. The court will now take up whether any remnant of the historic law can survive if that linchpin fails.

The justices' questions in Tuesday's hearing carried deeply serious implications but were sometimes flavored with fanciful suggestions. If the government can force people to buy health insurance, justices wanted to know, can it require people to by burial insurance? Cellphones? Broccoli?

The law, pushed to passage by Obama and congressional Democrats two years ago, would affect nearly all Americans and extend insurance coverage to 30 million people who now lack it. Republicans are strongly opposed, including the presidential contenders now campaigning for the chance to challenge Obama in November.

Audio for Tuesday's court argument can be found at: http://apne.ws/Hft6z3.

The court focused on whether the mandate for Americans to have insurance "is a step beyond what our cases allow," in the words of Justice Anthony Kennedy.

But Kennedy, who is often the swing vote on cases that divide the justices along ideological lines, also said he recognized the magnitude of the nation's health care problems and seemed to suggest they would require a comprehensive solution.

He and Chief Justice John Roberts emerged as the apparent pivotal votes in the court's decision. The ruling is due in June in the midst of a presidential election campaign that has focused in part on the new law.

Wednesday's final arguments — the third day in the unusually long series of hearings — will focus on whether the rest of the law can remain even if the insurance mandate is struck down and, separately, on the constitutionality of another provision expanding the federal-state Medicaid program.

The insurance requirement is intended to complement two unchallenged provisions of the law that require insurers to cover people regardless of existing medical conditions and limit how much they can charge in premiums based on a person's age or health.

The law envisions that insurers will be able to accommodate older and sicker people without facing financial ruin because the insurance requirement will provide insurance companies with more premiums from healthy people to cover the increased costs of care.

The biggest issue, to which the justices returned repeatedly during two hours of arguments in a packed courtroom, was whether the government can force people to buy insurance.

"Purchase insurance in this case, something else in the next case," Roberts said.

"If the government can do this, what else can it not do?" Justice Antonin Scalia asked. He and Justice Samuel Alito appeared likely to join with Justice Clarence Thomas, the only justice to ask no questions, to vote to strike down the key provision of the overhaul. The four Democratic appointees seemed ready to vote to uphold it.

Kennedy at one point said that allowing the government mandate would "change the relationship" between the government and U.S. citizens.

"Do you not have a heavy burden of justification to show authorization under the Constitution" for the individual mandate? asked Kennedy.

At another point, however, he also acknowledged the complexity of resolving the issue of paying for America's health care needs.

"I think it is true that if most questions in life are matters of degree ... the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That's my concern in the case," Kennedy said.

Roberts also spoke about the uniqueness of health care, which almost everyone uses at some point.

"Everybody is in this market, so that makes it very different than the market for cars or the other hypotheticals that you came up with, and all they're regulating is how you pay for it," Roberts said, paraphrasing the government's argument.

Solicitor General Donald Verrilli Jr. sought to assure the court that the insurance mandate in the Patient Protection and Affordable Care Act that Obama signed into law in 2009 is a key part of the law's goal of reaching many of the more than 40 million people who don't have health insurance through their employers, don't qualify for government aid and cannot afford to buy coverage on their own.

Paul Clement, who is representing Florida and 25 other states in challenging the law, called the mandate "an unprecedented effort by Congress."

Clement, a predecessor of Verrilli's as solicitor general, said the requirement would force people, especially those who are young and healthy, to buy a product they don't want.

Michael Carvin, representing the National Federation of Independent Business in opposing the law, also pushed hard on the notion of individual freedom. When Justice Stephen Breyer asked if the federal government could not order vaccinations "if there was some terrible epidemic sweeping the United States," Carvin said no. Congress lacks the power to do so, he said.

Justice Ruth Bader Ginsburg said she found the debate over health care similar to an earlier era's argument about the Social Security retirement system. How could Congress be able to compel younger workers to contribute to Social Security but be limited in its ability to address health care? she wondered.

"There's something very odd about that, that the government can take over the whole thing and we all say, oh, yes, that's fine, but if the government wants to preserve private insurers, it can't do that," she said.

Scalia and Roberts noted that the health care overhaul law would make people get insurance for things they may not need, such as heart transplants or pregnancy services. "You can't say that everybody is going to participate in substance abuse services," Roberts said.

On the other hand, Ginsburg said, "The people who don't participate in this market are making it more expensive for those who do."

"You could say that about buying a car," Scalia retorted, noting that if enough people don't buy cars the cost could go up.

But, unlike cars, almost everyone eventually will be required to use the health care system, Verrilli said in defense of the law. Without health insurance, he said, "you're going to the market without the ability to pay for what you're going to get."

Members of Congress on both sides of the fight sat through Tuesday's arguments, along with Attorney General Eric Holder and Health and Human Services Secretary Kathleen Sebelius. Republicans opposed to the law in the audience included Senate Minority Leader Mitch McConnell of Kentucky, Sen. John Cornyn of Texas and Sen. Lindsey Graham of South Carolina. Also at the court were Democratic supporters including Sen. Pat Leahy of Vermont, Sen. Max Baucus of Montana and Reps. John Dingell and John Conyers, both of Michigan.

Demonstrators returned Tuesday to the sidewalk outside the Supreme Court, with more than 100 supporters of the law circling and chanting, "I love Obamacare." They carried signs reading slogans such as "A healthy America is a productive America" and `'Protect the law."

More than a dozen opponents held a news conference criticizing the bill.

Supporters, two of them wearing Statue of Liberty costumes, marched to music played over a loudspeaker. A trumpet player played "When the Saints Go Marching In" and "This Little Light of Mine," and supporters changed the lyrics to ones supporting the health care law.

One demonstrator opposing the law wore a striped prison costume and held a sign, "Obama Care is Putting the US Tax Payer in Debtors Prison."

Rep. Michele Bachmann of Minnesota, a former Republican presidential candidate, joined a tea party press conference of opponents of the law. Calling the law "the greatest expansion of federal power in the history of the country," she said, "We are calling on the court today: Declare this law unconstitutional."

http://xfinity.comcast.net/articles/news-general/20120326/US.Supreme.Court.Health.Care/

as i read this, I just don't understand the logic of the SCOTUS.

the questions are strange

Ginsburg argues thusly = we trashed the Constitution for Socialist insecurity so we should trash it again for Obumercare.

The response should have been - we are not now addressing social security are you suggestind it should be revisited?

"Justice Ruth Bader Ginsburg said she found the debate over health care similar to an earlier era's argument about the Social Security retirement system. How could Congress be able to compel younger workers to contribute to Social Security but be limited in its ability to address health care? she wondered."

Sebastian said:

Ginsburg argues thusly = we trashed the Constitution for Socialist insecurity so we should trash it again for Obumercare.

The response should have been - we are not now addressing social security are you suggestind it should be revisited?

"Justice Ruth Bader Ginsburg said she found the debate over health care similar to an earlier era's argument about the Social Security retirement system. How could Congress be able to compel younger workers to contribute to Social Security but be limited in its ability to address health care? she wondered."

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WELL SAID!!!!!!!

If they REEEEEALLY wanted us to have access to health care...they wouldn't have given millions of dollars worth of high powered weapons to gangs in Mexico trying to keep us from getting affordable drugs and healthcare over there. They would not have spent our precious tax dollars with wild abandon, or let illegals rape and pillage our healthcare system. They wouldn't have built the biggest corporate prison system in the world providing billions of dollars there again of free care (sex change operations) and meds to illegals and other in there! They WASTE and pillage us and now want our checking account numbers so they can use US as their ATM! They are wasting, and they need to tighten their belts!

https://fbcdn-sphotos-a.akamaihd.ne...38746_103848852983625_965393_1718129991_n.jpg

TorahTips said:

.........OK......... What will change under ObamaCare that will suddenly make insurance for me something that would be reasonable in cost? Nobody who supports this nonsense seems to know how to answer that question. What if they mandate it and I simply cannot afford it? IMHO, this is simply a new form of taxation.....

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the problem isnt the insurance coverage. the problem is the money gouging and inflated book keeping by the medical profession. Once the government gets involved there will never be enough money to sustain the system. ever!

if the same band aid cost is free for welfare, thousand dollars for medicare written off for tax purposes and collected and paid by gov of only two cents, fifty dollars for insurance negotiated prices, and maybe a hundred dollars for the self pay and 300 dollars for the uninsured then what exactly is the cost of the band aid?

and how will government who created all the artificial price problems with the ever increasing regulations incorporating welfare and medicare laws and demands be able to run the entire health care system when they cant even run the VA Hospital Program.

Oreally said:

Look for an unexpected vacancy on the Court in the next month or so.

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And if does, once that idiot is out of office, the next president needs to increase the size of the SC by 5(since the president does have the Right to decide how many justices there will be) and add all conservatives. That should keep us safe for a while.

Wiley said:

And if does, once that idiot is out of office, the next president needs to increase the size of the SC by 5(since the president does have the Right to decide how many justices there will be) and add all conservatives. That should keep us safe for a while.

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Read about FDR's attempt to "pack the court". Been tried, won't happen now either.