By Alan Lyndon
“If the government can do that, what else can it” do? That question – asked by Supreme Court Justice Antonin Scalia in regard to the so-called “individual mandate” requirement of the Patient Protection and Affordable Care Act – may provide a clue as to the eventual fate of President Obama’s signature legislation.
The second day of oral arguments before the United States Supreme Court was the most significant of the three-day marathon session from March 26 – 28. The key provision of PPACA is the congressional requirement that most Americans purchase health insurance, which would eventually lead coverage for an additional 30 million Americans.
Whether the rest of the law stands without the mandate was the topic for Day 3 of oral arguments. But the law as intended will stand or fall with the decision based on the pivotal second day. The legal question before the Court was whether Congress overstepped by requiring most Americans to obtain insurance or pay a penalty.
Solicitor General Donald Verrilli did not even get through the customary three minute opening statement before he was quickly peppered with questions from the Court about the effects of such a mandate.
Chief Justice John Roberts likened the situation to a potential market for emergency services such as police, fire, ambulance: “You don’t know when you’re going to need it. You’re not sure that you will….You don’t know if you’re going to need a hear transplant or if you ever will.”
But even though you can dial 911 from anywhere, asked Justice Roberts, should “the government require you to buy a cell phone because that would facilitate responding when you need emergency services?”
Justice Samuel Alito made a similar analogy to burial services. “Everybody is going to be buried or cremated at some point.”
On the other side of the ideological isle, Justice Ruth Bader Ginsburg suggested that the mandate was a necessity to prevent uninsured people from receiving free healthcare while “making the rest of us pay.”
Justice Sonia Sotomayor seemed to support the totality of the law when she asked whether Americans would stand for the death of child “turned away because the parent didn’t have insurance.”
The final decision, expected to be heard in June, will most likely end in a 5-4 ruling with Justice Anthony Kennedy as the swing vote. Justice Kennedy did not tip his hat during questioning, but seemed skeptical as he pointed out that such a mandate is unprecedented. He seemed less than satisfied by the government’s response when he asked if Congress has ever required all Americans to purchase a product like health insurance.