Skeptical Kennedy signals trouble for Obama’s healthcare law

Reporting from Washington —  The Supreme Court’s conservative justices sharply attacked the insurance mandate that is at the heart of President Obama’s healthcare law, strongly suggesting Tuesday they are prepared to strike it down as unconstitutional.

Justice Anthony M. Kennedy described it as “unprecedented” for the federal government to impose an “affirmative duty” on people to buy a product. He was referring to the law’s requirement that everyone have minimal health coverage by 2014, or pay a penalty.

“You have a heavy burden” to show the Constitution permits Congress this sort of power, he told Obama’s solicitor general, Donald Verrilli Jr.

Justice Antonin Scalia said there is no basis for allowing the federal government to impose such a mandate in the guise of regulating commerce. If “forced purchases” are permitted, “the question is whether there are any limits” on Congress’s power.

Chief Justice John G. Roberts Jr. sounded equally skeptical. He said the Constitution puts limits on federal power, and those limits would be erased if federal authorities could require the purchase of products. He said he was not convinced by the government’s argument that healthcare is unique because persons may face a medical emergency at any moment.

Roberts said motorists may need “emergency services” on the highway, including from the police or ambulance. Even so, the government could not require everyone to buy a cellphone, he said.

If anything, Justice Samuel A. Alito Jr. was even more critical. He said the mandate is “forcing these [healthy] people to provide a huge subsidy to insurance companies.”

It is often difficult to tell from oral arguments exactly how the justices will vote, but from their questions, the four conservatives sounded as though they had made up their minds that the mandate is unconstitutional. If so, they would surely have a fifth vote for a majority thanks to Justice Clarence Thomas. He has been counted as a sure vote against the healthcare law because he has argued for cutting back on Congress’s power to regulate business and the economy.

At several points, the liberal justices came to the aid of the government’s lawyer, but they appeared to make little headway with their conservative colleagues.

Justice Ruth Bader Ginsburg said the mandate is needed to make sure that everyone pays their fair share for the cost of healthcare. If people “choose not to buy insurance,” they will “force the cost…on other people,” she said.

Justice Stephen G. Breyer said Congress confronted the problem that about 40 million Americans do not have health insurance. He said in the past, the courts have said Congress has very broad power to regulate national markets, from farm products to automobiles.

In his closing argument, Verrilli urged the justices to defer to the choices made “by the democratically accountable branches of government.”

In this case, that would be the legislation passed by the Democratic-controlled House and Senate. But the court, which has five Republican appointees, did not sound as though it was inclined to do so.

The architects of the 2010 Patient Protection and Affordable Care Act included an insurance requirement after years of experiences with insurance markets suggested that it is very difficult to guarantee health insurance to everyone, including people with preexisting medical conditions, without a way to induce younger, healthier people to get covered. That offset the cost of insuring older, sicker ones.

Under the law, most Americans would have to get a health insurance plan starting in 2014 that meets a basic set of standards or pay a tax penalty that will rise from $95 in 2014 to $695 in 2016. (The penalty for a family will be up to $2,085 in 2016.)

Health policy experts warn that without some incentive to get insurance, people could wait until they got seriously ill and then sign up for coverage, pushing up premiums for everyone.

The mandate was once embraced by both political parties. But more recently, it has been seized on by conservative critics of the healthcare law as an egregious example of government overreach. And it became the crux of lawsuits challenging the law by 26 states and plaintiffs represented by the conservative National Federation of Independent Business.

Over the last two years, federal courts across the country have issued conflicting rulings on the insurance requirement, though only one appellate court has backed the constitutional challenge to the law. And two high-profile conservative judges have supported the mandate.

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