Mandate's Fate Seems To Rest On Kennedy, Roberts After Tuesday's Supreme Court arguments, it is clear where the balance of power lies — in the votes of Chief Justice John Roberts and Justice Anthony Kennedy. And the questions they posed to the government were far more direct than the questions posed to the challengers.
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Mandate's Fate Seems To Rest On Kennedy, Roberts

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Mandate's Fate Seems To Rest On Kennedy, Roberts

Mandate's Fate Seems To Rest On Kennedy, Roberts

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From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.


And I'm Melissa Block. It was day two of health care arguments at the Supreme Court. And outside, it was day two of sidewalk theatre.

UNIDENTIFIED GROUP #1: Constitution, yes. Socialism, no. Constitution, yes. Socialism, no.

BLOCK: Cries of Constitution, yes, socialism, no, from critics of the health care law, mingled with chants from supporters.

UNIDENTIFIED GROUP #2: We love Obamacare. We love Obamacare. We love Obamacare.

SIEGEL: Inside the court, there was hostile questioning from key justices which seemed to imperil the central provision of the health care overhaul: the individual mandate. It requires virtually all Americans to have insurance either through Medicare, Medicaid or an employer. If not, you have to buy it yourself or pay a penalty.

BLOCK: In the Supreme Court's three days focusing on the law, today marked the heart and soul of the argument. And NPR legal affairs correspondent Nina Totenberg was there.

NINA TOTENBERG, BYLINE: Solicitor General Donald Verrilli seemed unusually nervous at first, asking for a moment to sip water to clear his throat. He had good reason for his nerves. Conservative Justices Scalia and Alito quickly took out after him with a vengeance. Alito asked why Americans shouldn't be required to buy funeral insurance, too.

JUSTICE SAMUEL ALITO: Everybody is going to be buried or cremated at some point. What's the difference?

SOLICITOR GENERAL DONALD VERRILLI: Well, one big difference, Justice Alito, is the - you don't have the cost shifting to other market participants.

TOTENBERG: In short, said Verrilli, those who are insured are subsidizing those who get free health care at the emergency room. Justice Scalia disputed that, contending that the young and the healthy are paying way more than is needed for their own immediate care.

JUSTICE ANTONIN SCALIA: We're not stupid. They're going to buy insurance later. They're young and need the money now.

TOTENBERG: Scalia and Alito kept up that drumbeat, but for supporters of the law, the worrisome questions came from Anthony Kennedy, the justice who most often swings the court in five-to-four decisions.

JUSTICE ANTHONY KENNEDY: I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?

TOTENBERG: The government's argument is that health care is unique because everyone consumes it. The only question is when. Chief Justice Roberts, however, questioned that proposition.

CHIEF JUSTICE JOHN ROBERTS: The same, it seems to me, would be true, say, for the market in emergency services: police, fire, ambulance, roadside assistance, whatever. You don't know when you're going to need it; you're not sure that you will.

VERRILLI: I think the fundamental difference, Mr. Chief Justice, is that that's not an issue of market regulation. This is an issue of market regulation.

TOTENBERG: Roberts went on to question the breadth of the health care law.

ROBERTS: You're requiring people who are not - never going to need pediatric or maternity services to participate in that market.

TOTENBERG: Justice Ginsberg interjected: That's how insurance works. It spreads risks and can be regulated to ensure basic services. Not so, said Justice Scalia.

SCALIA: It may well be that everybody needs health care sooner or later, but not everybody needs a heart transplant, not everybody needs a liver transplant. Why...

VERRILLI: That's correct, Justice Scalia...

SCALIA: Wait. I mean...

VERRILLI: ...but you never know whether you're going to be that person.

SCALIA: Could you define the market - everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.

TOTENBERG: Justice Kennedy piled on, albeit gently.

KENNEDY: Here the government is saying that the federal government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases...


KENNEDY: ... that changes the relationship of the federal government to the individual in a very fundamental way.

TOTENBERG: Kennedy noted that the government could have enacted a single-payer program, much like Medicare, where the government pays for all the costs. Solicitor General Verrilli batted the question back this way.

VERRILLI: I do think one striking feature of the argument here that this is a novel exercise of power is that what Congress chose to do was to rely on market mechanisms and efficiency and a method that has more choice than would the traditional Medicare- or Medicaid-type model. And so it seems a little ironic to suggest that that counts against it.

TOTENBERG: When Verrilli sat down and the challengers rose to argue, the worm turned. This time, it was the court's liberals - Ginsberg, Kagan, Sotomayor and Breyer - who did the pounding, joined more mildly on occasion by Kennedy and Chief Justice Roberts. Representing the 26 states who contend the law is unconstitutional, lawyer Paul Clement said that the mandate is being paid for on the backs of young healthy people.

PAUL CLEMENT: I mean, those people are essentially the golden geese that pay for the entire lowering of the premium.

TOTENBERG: Justice Ginsberg interjected that that is the way insurance works, and that government insurance, be it Medicare or Social Security, works that way, too. Clement contended that the government can provide incentives, as it did with the Cash for Clunkers program, but it cannot impose a mandate to buy. Chief Justice Roberts pressed him on that point.

ROBERTS: Well, Mr. Clement, the key to the government's argument to the contrary is that 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.

TOTENBERG: Justice Kagan added that health care and health insurance are inextricably linked.

JUSTICE ELENA KAGAN: We don't get insurance so that we can stare at our insurance certificate. We get it so that we can go and access health care.

TOTENBERG: Justice Sotomayor chimed in that most people do not have car accidents but states still require them to have automobile insurance. As Justice Kennedy put it...

KENNEDY: They're in the market in the sense that they're creating a risk that the market must account for.

TOTENBERG: Or as other justices repeatedly pointed out, those who are insured are paying about $1,000 more a year in order to cover emergency room care for people who do not have insurance. Lawyer Michael Carvin, representing the National Federation of Independent Business, at one point noted that Congress has required hospitals to treat people when they come in to the emergency room. That prompted this from Justice Sotomayor.

JUSTICE SONIA SOTOMAYOR: What percentage of the American people who took their son or daughter to an emergency room and that child was turned away because the parent didn't have insurance? Do you think there's a large percentage of the American population who would stand for the death of that child...

MICHAEL CARVIN: One of the most...

SOTOMAYOR: ...they had an allergic reaction and a simple shot would have saved the child?

CARVIN: One of the more pernicious misleading impressions that the government has made is that we are somehow advocating that people get thrown out of emergency rooms.

TOTENBERG: The alternative, he suggested, is to have people buy insurance at the point when they actually need it. In rebuttal, the government's Mr. Verrilli said that simply would not work.

VERRILLI: Think about how much it would cost to get the insurance when you are at the hospital or at the doctor. It would be unfathomably high, that will never work. Congress understood that. It chose the means that will work.

TOTENBERG: Pulling back from today's arguments, it's clear where the balance of power lies: in the votes of Chief Justice Roberts and Justice Kennedy. And yet, the questions that they posed to the government were far more direct, even passionate, than the questions posed to the challengers; note, for example, Justice Kennedy's reluctant tone in this question to the NFIB's Michael Carvin.

KENNEDY: I agree that that's what's happening here.


KENNEDY: And the government tells us that's because the insurance market is unique. And in the next case, it will say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets - stipulate two markets - 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.

TOTENBERG: And Kennedy's concerns could very well determine the outcome of this case. Nina Totenberg, NPR News, Washington.

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