The Supreme Court wasted no time drawing up sides on the individual mandate during its second day of hearings on President Barack Obama's landmark health care reform.
The mandate, which will require uninsured Americans to purchase health insurance or face a fine beginning in 2014, has become the political lightning rod of the Affordable Care Act since its passage two years ago.
Some justices express doubt
As expected, the conservative justices expressed doubts that Congress has the constitutional power to force Americans to buy anything, much less health insurance.
Solicitor General Donald Verrilli was just minutes into his opening defense of the individual mandate when he was double-teamed by Chief Justice John Roberts and Justice Antonin Scalia, who questioned how forcing people to buy health insurance differs from, say, forcing them to buy groceries, cell phones or burial insurance.
Verrilli fought back, noting that health care differs from other markets in that "virtually everybody … is either in that market or will be in that market, and the distinguishing feature of that is that people cannot generally control when they enter that market or what they need when they enter that market."
"All this minimum coverage provision does is say that, instead of requiring insurance at the point of sale, that Congress has the authority under the commerce power and the necessary proper power to ensure that people have insurance in advance of the point of sale because of the unique nature of this market," Verrilli added.
Justice Anthony Kennedy, who has been the swing vote when court decisions split along ideological lines, acknowledged that the individual mandate is "unprecedented … a step beyond what our cases have allowed," and noted that Verrilli had "a heavy burden of justification" on his shoulders.
Paul Clement, the attorney representing 26 states in challenging the law, called the mandate "an unprecedented effort by Congress" that would require Americans, including young, healthy people, to purchase a product they don't want.
Health insurance is different, Justice Ginsburg says
But Justice Ruth Bader Ginsburg, one of the more liberal justices, said health insurance differs from bread or broccoli. "It's not my choice whether I want to buy a product to keep me healthy, but the cost that I am forcing on other people if I don't buy the product sooner rather than later" that's at issue, she said.
Late in the two-hour hearing, Justice Kennedy surprised the states' counsel with this cryptic comment:
The government tells us that's because the insurance market is unique. And in the next case, it'll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets -- stipulate two markets -- the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That's my concern in the case.
The Supreme Court wraps up its three-day hearing on Wednesday, when it considers the expansion of Medicaid under health care reform and whether the Affordable Care Act can stand on its own if any of its parts are ruled unconstitutional.
The court is expected to hand down its ruling on health care reform in late June.
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