DAVID GREENE, HOST:
This is MORNING EDITION from NPR News. I'm David Greene. Good morning.
Today the Supreme Court gets to the heart of the Obama health care law. It's almost exactly two years since Congress passed the legislation, and the justices are hearing legal arguments testing the constitutionality of the so-called health care mandate. I so-called because that word actually does not appear in the law.
NPR's legal affairs correspondent Nina Totenberg explains.
NINA TOTENBERG, BYLINE: The mandate requires virtually all legal residents in this country to have health insurance; be it Medicare, Medicaid, employer paid insurance or, if you are not covered by any of these, you must get individual insurance that you pay for. The law provides generous subsidies if you can't afford it, but you must have health insurance, and if you don't, you pay a penalty that is paid with your income taxes.
The mandate is essentially a trade-off for reducing the costs of health care policies overall. It guarantees affordable coverage for people with previous Medical conditions, and covers some 30 million people who are currently uninsured.
Challenging the law are 26 states and the National Federation of Independent Business. Lawyer Michael Carvin, representing the NFIB, will tell the justices that Congress exceeded its authority to regulate interstate commerce, when it enacted the mandate.
MICHAEL CARVIN: I'm sitting at home in my living room. I'm not buying insurance. I'm not engaged in commerce, local intrastate, interstate. So how can they force me to enter into the stream of commerce?
TOTENBERG: The challenges contend that Congress, in order to pay for near universal health care coverage has, for the first time ever, required individual citizens to buy a commercial product that they may not want.
Lawyer Paul Clement, representing the states, characterizes the mandate this way:
PAUL CLEMENT: The reason we want people who are young and relatively healthy to buy health insurance is not because we're terribly concerned that those people are going to get unhealthy and end up in the emergency room. What we really want is those people to be part of the risk pool and contribute their premiums, so that we can afford to pay for the health care for the other folks.
TOTENBERG: The government counters that everyone consumes health care, the only question is when. Former solicitor general Neal Katyal argued the health care cases for the Obama administration in the lower courts.
NEAL KATYAL: I could get struck by a bus tomorrow or have a heart attack today, and show up in the emergency room. And if I don't have insurance, it's the other American taxpayers who do have insurance that are effectively footing the bill for that.
TOTENBERG: Indeed, Congress found families who do have insurance right now shell out on average $1,000 a year more than they would otherwise, in order to subsidize the health care costs of the uninsured. Put another way, when the uninsured show up at a hospital and are unable to pay, federal and state laws require those individuals to be treated, and the costs are passed on to those who are insured and to the taxpayers.
The government underscores the unpredictability of health needs by noting that one of the individuals who initially challenged the law in court, contending she didn't need health insurance, ended up declaring bankruptcy, with thousands of dollars of unpaid Medical bills.
Everyone agrees that the constitution sets out a system of limited government powers. And most concede that an industry that accounts for one-sixth of the national economy can be controlled under the congressional power to regulate interstate commerce. The question is whether the means chosen to do that - namely the individual mandate - go too far.
CLEMENT: If they can force you to engage in commercial transactions, they can force you to do almost anything.
TOTENBERG: All of which leads to what has been termed the broccoli question: could the government force you to buy broccoli, or a car, or a flat screen TV? Clement points to the Cash for Clunkers law as an example of an acceptable and direct government subsidy, as opposed to a mandated purchase.
CLEMENT: If what we were trying to do is prop up the automobile industry, which we clearly were, it think it would have been much more effective to say, look, if your adjusted gross income is over a $100,000, you must buy a car.
TOTENBERG: Katyal, speaking at a Bloomberg law event, replies that not everyone inevitably will own or even drive a car. Moreover...
KATYAL: That's not a situation in which you can show up at the car lot, drive off with a car, and stick your bill to your neighbor. That's what's going on in the health insurance market.
TOTENBERG: Former Clinton administration solicitor general Walter Dellinger says that health care is quite simply unlike any other product.
WALTER DELLINGER: If I don't buy a flat screen television and my team is playing for the national championship, I don't get to run into Best Buy and say, you got to give me a flat screen television. But I do get to go to a hospital when I'm sick and have people provide me with services.
TOTENBERG: The challengers, however, see the mandate as the ultimate threat to liberty. Here's the NFIB's Mike Carvin:
CARVIN: There is no limiting principle. Congress has the power to compel purchase, to serve the public welfare, to improve commerce, game over. They can do it for banks, car companies, anyone else they want.
TOTENBERG: The Supreme Court has over the last three-quarters of a century, upheld a wide variety of federal mandates on individuals and businesses. Civil rights laws have required hotels and restaurants to admit everyone regardless of race or ethnicity. Drug laws have barred even terminally ill patients from having access to certain drugs. More federal laws have imposed environmental restrictions on businesses and homeowners alike. And other laws have helped boost the wages and benefits of workers.
Indeed, the modern health insurance industry didn't exist until a 1954 federal law allowed employers to deduct the cost of health insurance, and, at the same time allowed employees to reap the benefits without paying taxes on them. Not since 1936 has the Supreme Court struck down a major regulatory law on grounds that Congress went too far.
Now, a court that is perhaps more conservative than at any time since then will determine whether Congress went too far with the individual mandate.
Nina Totenberg, NPR News, Washington.