WASHINGTON (By Adam Liptak, NYT)) ― The Supreme Court on Tuesday hears arguments on the central question in the constitutional challenges to President Obama’s health care overhaul law.
How it answers the question depends in large part on how the justices decide to frame the core issue.
The law’s challengers — 26 states led by Florida, the National Federation of Independent Business and several individuals — present the central question as one of individual liberty.
May the federal government, they ask, compel individuals not engaged in commerce to buy a product, here health insurance, from private companies?
The Obama administration, by contrast, urges the court to answer a different question. May Congress decide, in fashioning a comprehensive response to a national crisis in the health care market, to regulate how people pay for the health care they will almost inevitably need?
However the questions are ultimately framed, the Supreme Court’s answers will be grounded in the text of two provisions of the Constitution and in the precedents interpreting them.
The Constitution grants the federal government specified powers, reserving the rest to the states and to the people. The two powers at issue in the case, set out in Article I, Section 8, concern the regulation of interstate commerce and the imposition of taxes.
The administration’s primary argument is that the law is authorized by the commerce clause, which gives Congress the power to regulate commerce “among the several states.” The Supreme Court has read the clause broadly, saying it allows Congress to limit how much wheat may be grown on a family farm and to punish the cultivation of home-grown marijuana.
There have been only two modern exceptions to that broad interpretation. In 1995, the court struck down a federal law regulating guns near schools.
In 2000, it struck down a federal law allowing suits over violence against women. In both cases, the court said the activity sought to be regulated was local and noncommercial.
The decision under review, from the United States Court of Appeals for the 11th Circuit, in Atlanta, said the health care law overstepped the limits imposed by the commerce clause by regulating inactivity and forcing people into the marketplace.
In his main brief, Solicitor General Donald B. Verrilli Jr. urged the justices to look at the bigger picture.
“The minimum coverage provision,” he wrote, using the law’s name for what most people call the individual mandate, “is within Congress’s power to enact not only because it is a necessary component of a broader scheme of interstate regulation, but also because, within that scheme, the provision itself regulates economic conduct with a substantial effect on interstate commerce, namely the way in which individuals finance their participation in the health care market.”
Uninsured Americans each year use $43 billion of health care they cannot pay for, effectively transferring those costs to other American families to the tune of about $1,000 per year, Mr. Verrilli said.
In response, Paul D. Clement, representing 26 states challenging the law, said this conception of federal power amounts to “a revolution in the relationship between the central government and the governed.”
“If this is to remain a system of limited and enumerated federal powers that respects individual liberty, accountability and the residual dignity and sovereignty of the states, the individual mandate cannot stand.”
The federal government also argued the mandate is separately authorized by Congress’s power to levy taxes. The penalty people who fail to obtain insurance must pay is calculated as a percentage of their income and is paid to the Internal Revenue Service along with income and other taxes each April.
Mr. Clement responded the challenge is to the mandate, which applies to almost all Americans, rather than the penalty, which applies to a subset of them.
In any event, he said, a penalty is not a tax.