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Conflict Inside, Outside Supreme Court Highlight Day 3 of Health Insurance Hearing

Ernie Shannon's picture

Day three of the U.S. Supreme Court’s hearings regarding the constitutionality of the nation’s new health care law, the Affordable Care Act, kicks off today. It’s the last day of arguments before the justices and if today’s comments mirror the previous two days’ statements, it should shed additional light on what the high court thinks of the law.

Up for consideration this afternoon will be the Obama administration’s decision to expand Medicaid coverage and mandate that states accept the requirements or lose Medicaid matching funds from the federal government. The expansion of Medicaid is a titular aspect of the new health policy and provides coverage for people under 65 years of age with individual or family incomes up to 133 percent of the federal poverty level. In response to the new requirements that would take effect in 2014, 25 states led by Florida have filed suit challenging the legality of the measure.

The arguments today are likely to follow the line of questioning yesterday in which the court’s five judges most likely to vote down the law, expressed concern that the federal government was over reaching with a mandate to purchase health insurance.
The following exchange involved Chief Justice John Roberts and the Solicitor General Donald Verrilli regarding the law’s mandate that every citizen purchase health care:

CHIEF JUSTICE ROBERTS: Well, 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. But the same is true for health care. You don't know if you're going to need a heart transplant or if you ever will. So there is a market there. To -- in some extent, we all participate in it. 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?

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GENERAL VERRILLI: No, Mr. Chief Justice. I think that's different. It's -- We -- I don't think we think of that as a market. This is a market. This is market regulation. And in addition, you have a situation in this market not only where people enter involuntarily as to when they enter and won't be able to control what they need when they enter but when they --

CHIEF JUSTICE ROBERTS: It seems to me that's the same as in my hypothetical. You don't know when you're going to need police assistance. You can't predict the extent to emergency response that you'll need. But when you do, and the government provides it.
In another exchange between the chief justice, Justice Anthony Kennedy, and Verrilli, the heart of the dispute between the administration, Congress, and opponents of the law was starkly portrayed:

CHIEF JUSTICE ROBERTS: The key in Lochner is that we were talking about regulation of the States, right, and the States are not limited to enumerated powers. The Federal Government is. And it seems to me it's an entirely different question when you ask yourself whether or not there are going to be limits in the Federal power, as opposed to limits on the States, which was the issue in Lochner.

SOLICITOR GENERAL VERRILLI: I agree, except, Mr. Chief Justice, that what the Court has said as I read the Court's cases is that the way in which you ensure that the Federal Government stays in its sphere and the sphere reserved for the States is protected is by policing the boundary: Is the national government regulating economic activity with a substantial effect on interstate commerce?

JUSTICE KENNEDY: But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don't have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that's generally the rule. And 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 and that changes the relationship of the Federal Government to the individual in the very fundamental way.

The fireworks yesterday weren’t limited to the courtroom, however, as proponents and opponents gathered outside the Supreme Court building to plead their cause before cameras and photographers. The space between the groups became a de facto “no man’s land” as union members and Tea Party protesters confronted each other and attempted to shout each other down.
When all is said and done after today’s hearings, the issue will take a hiatus as the justices prepare to announce their decision sometime this summer.