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Health Care Reform:

Health Insurance & Affordable Care Act

Health Reform Faces Intense Supreme Court Scrutiny

Day 2 at the Supreme Court: Individual Mandate and the 'Broccoli Possibility'

'Can You Create Commerce in Order to Regulate It?' continued...

But what the health reform law does is only require advance purchase of something people inevitably need at some unknown point. Such a requirement, he said, does not create a precedent for mandates to buy cars or cell phones -- or broccoli.

Several justices pounced on Verrilli’s argument that Congress can regulate the health care market because everyone is in it. Justice Samuel Alito Jr. asked why the government should not require everyone, including the young and healthy, to obtain burial insurance.

“Most people are going to need health care,” said Alito. “Almost everybody. Everybody is going to be buried or cremated at some point. What's the difference?”

Verrilli replied that the burial industry is not plagued by billions of dollars in cost shifting.

Opponents of Law Take Heat, Too

Paul Clement, the attorney for the 26 state officials, and attorney Michael Carvin, representing the National Federation of Independent Business, also got sharp questioning from the justices.

Clement said that the individuals improperly compelled to purchase health care coverage are largely the young and healthy, who will subsidize the cost of caring for sicker Americans. 

“Those people are essentially the golden geese that pay for the entire lowering of the premium,” said Clement. His ally, Carvin, said this forced subsidy was a “fundamental problem” with the law.

Justice Ruth Bader Ginsburg suggested that societal subsidies in themselves have passed constitutional muster -- witness the Social Security program created during the Roosevelt administration.  The government began taxing everyone so that the elderly could get a check in the mail.

“It was a big fuss about that in the beginning because a lot of people said … they're forcing me to paying for this Social Security that I don't want,” said Ginsburg. “But that's constitutional.”

Activity vs. Inactivity

Carvin continued to make the point that the law oversteps Congress’ Commerce Clause authority by compelling inactive individuals to engage in commerce. He dismissed the notion that everyone is automatically an active participant in the health care marketplace.

“If being born is entering the market, then I can't think of a more [absolute] power Congress can have, because that literally means they can regulate every human activity from cradle to grave,” said Carvin.

Up Next

The Supreme Court wraps up its oral arguments on the health reform law tomorrow with a morning session on whether striking down the individual mandate means the entire law must be voided, and an afternoon session on the constitutionality of Medicaid expansion under the law. The justices will issue a ruling sometime before July.

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