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Paul Clement, who is representing Florida and 25 other states in challenging the law, called the mandate "an unprecedented effort by Congress."
Clement, a predecessor of Verrilli’s as solicitor general, said the requirement would force people, especially those who are young and healthy, to buy a product they don’t want.
Veggie mandates? Justices ask how far government can go
Washington » It boiled down to a debate over broccoli. And bread. And burial plots. If government can tell people to buy health insurance, Supreme Court justices wanted to know, what else could it make them buy?
Throughout Tuesday’s hearing on the health care law, the justices and lawyers argued about the perfect product to illustrate the limits of the federal government’s power over interstate markets.
“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,” offered Justice Antonin Scalia, obviously resistant to expanding government’s reach.
“That’s quite different,” responded Solicitor General Donald Verrilli, arguing for the health insurance mandate. Unlike grocery shopping, medical care is a market “in which your participation is often unpredictable and often involuntary.” And the care of patients who don’t pay gets passed on to everyone else as higher taxes and insurance premiums.
Verrilli preferred his own examples: the law is like regulation of telephone rates or price supports for milk.
And so it went.
» How about mandatory burial insurance, ventured conservative Justice Samuel Alito. “Everybody is going to be buried or cremated at some point. What’s the difference?”
» Chief Justice John Roberts wanted to know if people could be forced to buy cellphones for 911 calls.
» Attorney Paul Clement, representing 26 states challenging the law, tried wheat. When Congress wants to help farmers, he said, it doesn’t “just make everybody in America buy 10 loaves of bread.”
But Roberts, seeming to tire of the parade of products, cut him off by saying that doesn’t address the government’s argument — that everybody needs health care “and all they’re regulating is how you pay for it.”
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Michael Carvin, representing the National Federation of Independent Business in opposing the law, also pushed hard on the notion of individual freedom. When Justice Stephen Breyer asked if the federal government could not order vaccinations "if there was some terrible epidemic sweeping the United States," Carvin said no. Congress lacks the power to do so, he said.
Justice Ruth Bader Ginsburg said she found the debate over health care similar to an earlier era’s argument about the Social Security retirement system. How could Congress be able to compel younger workers to contribute to Social Security but be limited in its ability to address health care? she wondered.
"There’s something very odd about that, that the government can take over the whole thing and we all say, oh, yes, that’s fine, but if the government wants to preserve private insurers, it can’t do that," she said.
Scalia and Roberts noted that the health care overhaul law would make people get insurance for things they may not need, such as heart transplants or pregnancy services. "You can’t say that everybody is going to participate in substance abuse services," Roberts said.
On the other hand, Ginsburg said, "The people who don’t participate in this market are making it more expensive for those who do."
"You could say that about buying a car," Scalia retorted, noting that if enough people don’t buy cars the cost could go up.
But, unlike cars, almost everyone eventually will be required to use the health care system, Verrilli said in defense of the law. Without health insurance, he said, "you’re going to the market without the ability to pay for what you’re going to get."
Members of Congress on both sides of the fight sat through Tuesday’s arguments, along with Attorney General Eric Holder and Health and Human Services Secretary Kathleen Sebelius. Republicans opposed to the law in the audience included Senate Minority Leader Mitch McConnell of Kentucky, Sen. John Cornyn of Texas and Sen. Lindsey Graham of South Carolina. Also at the court were Democratic supporters including Sen. Pat Leahy of Vermont, Sen. Max Baucus of Montana and Reps. John Dingell and John Conyers, both of Michigan.
Demonstrators returned Tuesday to the sidewalk outside the Supreme Court, with more than 100 supporters of the law circling and chanting, "I love Obamacare." They carried signs reading slogans such as "A healthy America is a productive America" and ‘‘Protect the law."
More than a dozen opponents held a news conference criticizing the bill.
Supporters, two of them wearing Statue of Liberty costumes, marched to music played over a loudspeaker. A trumpet player played "When the Saints Go Marching In" and "This Little Light of Mine," and supporters changed the lyrics to ones supporting the health care law.
One demonstrator opposing the law wore a striped prison costume and held a sign, "Obama Care is Putting the US Tax Payer in Debtors Prison."
Rep. Michele Bachmann of Minnesota, a former Republican presidential candidate, joined a tea party press conference of opponents of the law. Calling the law "the greatest expansion of federal power in the history of the country," she said, "We are calling on the court today: Declare this law unconstitutional."
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