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It's the third and final day for the U.S. Supreme Court to consider the Obama health care overhaul. The justices hear arguments today on what parts could remain in effect if the court rules the individual mandate of the health care law is unconstitutional. After yesterday's arguments, that seemed more likely than most experts had expected.
NPR's legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: Predicting what the Supreme Court will do is a dangerous game, but it was clear by the end of the two-hour argument yesterday that two justices, Anthony Kennedy and John Roberts, hold the fate of the president's health care overhaul in their hands.
The mandate is widely perceived as the heart of the overhaul because it spreads the risk of paying for health care across generations, in exchange for making sure that people can buy affordable insurance without regard to pre-existing medical conditions. Most people already have health insurance through employer-provided plans, Medicare or Medicaid. But if you don't, the law requires you to buy insurance or pay a penalty.
It's an idea originally conceived of by conservative Republicans in the early 1990s. But it is now the flashpoint of conservative opposition to President Obama in this year's election campaign. And at the Supreme Court yesterday, the administration could draw little comfort from the tone of the questions. In order to prevail, supporters of the law must win the votes of at least one conservative justice; either Anthony Kennedy, who occasionally switches sides and aligns himself with the liberal justices, or Chief Justice John Roberts.
And while neither closed the door to upholding the law, they both sounded at best doubtful. Here, for example, is Kennedy:
JUSTICE ANTHONY KENNEDY: Here, the government is saying that the federal government has a duty to tell the individual citizens that it must act. And that is different from what we have in previous cases. That changes the relationship of the federal government to the individual in a very fundamental way.
TOTENBERG: And here is Roberts suggesting that the government is wrong, that health care is not unique.
CHIEF JUSTICE JOHN ROBERTS: The same, it seems to me would 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.
DONALD VERRILLI: I think the fundamental difference, Mr. Chief Justice, is that that's not an issue of market regulation. This is an issue of market regulation.
TOTENBERG: That last was Solicitor General Donald Verrilli defending the law. He was repeatedly battered with questions from the court's most conservative members. Justice Alito wondered whether Americans would be forced to buy funeral insurance next. Justice Scalia asked what there is to prevent the government from forcing people to buy broccoli.
JUSTICE ANTONIN SCALIA: It may well be that everybody needs health care sooner or later. But not everybody needs a heart transplant. Not everybody needs a liver transplant. Why...
VERRILLI: That's correct, Justice Scalia, but you never know whether you're going to need that...
SCALIA: Could you define the market? Everybody has to buy food sooner or later, so you define the market as food. Therefore, everybody is in the market. Therefore you can make people buy broccoli.
TOTENBERG: That isn't how insurance works, interjected Justice Ginsburg. The whole point of insurance is to spread the risk. Instead, she said, the system as it now operates, shifts the cost on to people who do have insurance, raising their premiums to pay for people who don't have insurance.
JUSTICE RUTH BADER GINSBURG: The problem is that they are making the rest of us pay for it.
TOTENBERG: As several justices observed, families who do have insurance pay on average a thousand dollars more each year in premium costs, to offset the costs of health care for people who do not have insurance. Congress, Justice Ginsburg said, reasonably decided the only solution was to have everyone pay up front.
Justices Alito and Scalia, however, saw the mandate as forced onto the backs of young and healthy Americans. Here's Scalia:
SCALIA: We're not stupid. They're going to buy insurance later. They're young and need the money now.
TOTENBERG: Justice Kennedy noted that Congress does have constitutional alternatives to the mandate, namely a federally-financed single payer system. In essence, a national health system.
Solicitor General Verrilli responded this way:
VERRILLI: I do think one striking feature of the argument here that this is a novel exercise of power, is that what Congress chose to do was to rely on market mechanisms and efficiency, and a method that has more choice than would the traditional Medicare or Medicaid-type model. And so, it seems a little ironic to suggest that that counts against it.
TOTENBERG: Verrilli said that even opponents of the mandate concede that health care represents one-sixth of the U.S. economy and that Congress may, under the Constitution, regulate such interstate commerce. He pointed out that both federal and state laws require hospitals to treat people who show up at their doorsteps and that the cost is then shifted to people who do have insurance and to taxpayers. To that Justice Scalia responded...
SCALIA: Well, don't obligate yourself to that, you know?
VERRILLI: I can't imagine that that - that the Commerce Clause would forbid Congress from taking into account this deeply embedded social norm.
SCALIA: You could do it. But does that expand your ability to issue mandates?
TOTENBERG: Chief Justice Roberts chimed in to observe that under the Obama health care overhaul, every health care plan has to have a set of basic services that many people may not want.
ROBERTS: You're requiring people who are not - never going to need pediatric or maternity services to participate in that market.
TOTENBERG: Roberts argued the other side of the coin when lawyers challenging the mandate got up to argue. Lawyer Paul Clement, representing 26 states, contended that Congress can legislate incentives to buying health insurance, just as it legislated incentives to buying cars with the Cash for Clunkers program, but he said Congress cannot impose a mandate.
Here is Chief Justice Roberts testing that proposition, but notice that he frames the question, not as his own, but as the government's.
ROBERTS: Well Mr. Clementi, the key to the government's argument to the contrary is that everybody is in this market. So that makes it very different than the market for cars or the other hypotheticals that you came up with. And all they're regulating is how you pay for it.
TOTENBERG: Justice Ginsburg observed that the theory behind the mandate is the same as the theory behind Medicare or Social Security.
GINSBURG: It seems to me you're saying the only way that could be done is if the government does it itself. It can't involve the private market. It can't involve the private insurers.
TOTENBERG: Justice Kennedy, also seemed to acknowledge the realities of the health insurance industry.
KENNEDY: I think it is true that most questions in life are matters of degree. In the insurance and health care world, both markets - stipulate two markets - the young person who's uninsured is uniquely, approximately very close to affecting the rates of insurance and the cost of providing medical care in a way that is not true in other industries. That's my concern in the case.
TOTENBERG: Lawyer Michael Carvin, representing the National Federation of Independent Business, contended that the government's statistical argument would allow it to regulate almost anything. That prompted this question from Justice Breyer, who wondered what the federal government's power would be if a terrible disease were affecting 50 percent of the U.S. population.
JUSTICE STEPHEN BREYER: You'd say the federal government doesn't have the power to get people inoculated, to require them to be inoculated, because that's just statistical.
TOTENBERG: All in all, it was a very serious and tense two hours, except for this one moment of levity, when Justice Breyer, having interrupted a question from Justice Kagan, ceded the floor back to her.
BREYER: Go back to Justice Kagan. Don't forget her question.
JUSTICE ELENA KAGAN: I've forgotten my question.
(SOUNDBITE OF LAUGHTER)
TOTENBERG: A serious-faced Ginsburg, picked up the slack with another question, but a grinning Kagan said: See, that's what it means to be the junior justice.
Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright National Public Radio.