Conservatives' Questions Hint At Tough Road For Health Reform

10:43 PM, Mar 27, 2012   |    comments
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WASHINGTON, D.C. (WUSA) - Deeply skeptical questions from Justices Samuel Alito, Anthony Kennedy and Chief Justice John Roberts hint that a sharply divided Supreme Court could overturn health care reform that Democrats have been pushing for decades.

Supporters and opponents both agreed that if the government simply went into the business of providing health insurance for all, that would likely pass constitutional muster.

But there were tough questions about the mandate that everyone buy insurance or pay a penalty.

Chief Justice Roberts: "So can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? You can just dial 911 no matter where you are?"

Solicitor General Donald Verrilli, Jr, representing the Obama Administration: "No, Mr. Chief Justice. I think that's different that's different."

The conservative justices gave the Obama Administration's lawyer just minutes before jumping in with questions that suggested he'd failed to convince them the federal government can force citizens to buy insurance.

Justice Kennedy was among those who questioned whether the federal government has the power to compel people to buy health insurance -- or anything else. "And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act ... That changes the relationship of the Federal Government to the individual in the very fundamental way."

Michael Carvin was one of the lawyers arguing against the individual mandate.  "I think anybody has got to be skeptical about the unbounded power the government is trying to assert for the first time."

Walter Dellinger is a former Solicitor General in the Clinton Administration. "Some of the justices clearly signaled where they're going to come out. But the Chief Justice, Justice Kennedy did not. They asked tough questions of both sides."

The four liberal justices offered a ringing defense of the government's right to regulate healthcare and mandate that almost everyone buy it or pay a penalty as a way to extend coverage to the nation's 40 million uninsured. . Justice Stephen Breyer: "... a disease is sweeping the United States, and 40 million people are susceptible, of whom 10 million will die; can't the Federal Government say all 40 million get inoculation?"

"State government can solve all those problems. The federal government is limited," responds Carvin.  "How can you wait until after you are hit by a car to buy health insurance?" I asked him. "Once you get the the emergency room, they can sign you up," he responded. 

A skeptical Justice Samuel Alito compared the individual mandate to forcing everyone to buy burial insurance. "Eventually you're going to die, and somebody is going to have to pay for it, and if you don't have burial insurance and you haven't saved money for it, you're going to shift the cost to somebody else."

But the conservative justices also asked tough questions of the individual mandate's opponents. And the questions do not always accurately predict the final vote.
Plenty of pundits have suggested that the Chief Justice in particular may be reluctant to see another 5-4 decision like Bush V Gore that once again opens the court to allegations that it's excessively partisan.

Written and Reported by Bruce Leshan
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