Justice Samuel Alito compared the law to mandating people buy burial insurance because everyone’s going to die. And Justice Antonin Scalia likened it to making people enroll in gym memberships, in advancing the concerns of the conservative justices that Obama’s signature law could open the doors for Congress to require that Americans participate in all sorts of markets.
Tuesday morning’s Supreme Court hearings spanned two hours, twice the normal length. At the crux of today’s debate: whether Congress has the constitutional authority to require that nearly all Americans purchase health insurance, and whether it has the right to assess a financial penalty for those who refuse.
Twenty six states, an independent business group, and some individuals are suing the government on the basis that the mandate threatens individual liberty by forcing people into the insurance market.
The government argues that everyone is already in the health care market – which makes up nearly 18 percent of the economy—because everyone will need health care at some point in their lives, and the mandate is necessary to make one of the key provisions of health reform – that insurers cannot discriminate on pre-existing medical conditions—work.
The courtroom was abuzz with anticipation in the hour preceding the arguments, with reporters craning their neck behind thick marble columns, heavy velvet drapery and golden metal gates to catch a glimpse of the audience.
More than a dozen congressmen could be spotted in the besuited crowd, as well as Attorney General Eric Holder, Obama adviser Valerie Jarrett, and Kathleen Sebelius, secretary of the U.S. Department of Health and Human Services, which is being sued. Massachusetts Senator John Kerry was ushered in just moments before the arguments began.
Justice Anthony Kennedy, largely seen as a key swing vote, pressed the question of whether Congress is empowered to create commerce in order to regulate it.
Solicitor General Donald Verrilli, Jr., arguing on behalf of the government, denied that is occurring. He also brushed aside the other justices’ comparisons to cell phones, burial services and gym memberships – as well as cars and broccoli, for that matter – because people, even the uninsured, are active participants of the health care market.
Scalia expressed doubts that the Constitution grants Congress the authority to impose a health insurance mandate. It may be necessary, he said, but not proper under the commerce clause because it violates the states’ sovereignty.
Kennedy, too, voiced similar concerns, saying that requiring people to buy health insurance changes the relationship of the federal government to the individual in a fundamental way.
Many demonstrators had arrived by 6:30 on a chilly morning for the second day of hearings. By 8 a.m., hundreds flooded the sidewalk in front of the court house steps.
“Protect our care. Protect the law,” chanted a circle of supporters of the law, some dressed as the Statue of Liberty, complete with the torch and other carried signs resembling a pack of birth control pills.
A woman opposed to the law stood right next to the group, silently waving a hand-written poster board that said “Your pills. Your bills.” On the other side: “Keep your ovaries off my rosaries.”
Within minutes, a chorus of opponents to the law reached a crescendo to rival the supporters as both groups shouted louder to try to drown each other out: “Stop Obamacare. We love freedom.”
The justices are expected to issue a ruling by late June.Tracy Jan can be reached at email@example.com. Follow her on Twitter @GlobeTracyJan.