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Kennedy mused that Congress could have created a Medicare-style program for the uninsured, run exclusively by the government without the involvement of private insurers.
"Let’s assume that (Congress) could use the tax power to raise revenue and to just have a national health service, single payer," said Kennedy. "How does that factor into our analysis? In one sense, it can be argued that this is what the government is doing; it ought to be honest about the power that it’s using and use the correct power.
"On the other hand, it means that since ... Congress can do it anyway, we give a certain amount of latitude," Kennedy continued. "I’m not sure which way the argument goes."
The case may well turn on how Kennedy decides.
Social Security and Medicare are no longer controversial mandates because they are part of the social fabric, said Hayes, the former GOP congressional aide. Not so the health care law’s mandate. "Today, this is controversial because it is novel from a legal standpoint and also new from a societal standpoint," he said.
The distinction frustrates supporters of the health care law.
"It’s so crazy to think that a society that has Social Security and Medicare would not find this (law) constitutional," said MIT economist Jonathan Gruber, who advised both the Obama administration and Massachusetts lawmakers as they developed the state mandate in the 2006 law that Republican presidential candidate Mitt Romney championed as governor.
"The payroll tax is worse than the mandate, because that is a program where we take your money and there is no ability to get out of it," Gruber said. Citizens can avoid the health insurance mandate by paying a penalty to the Internal Revenue Service.
Other federal health care mandates include:
— The 1986 Emergency Medical Treatment and Active Labor Act. It requires nearly all hospitals to treat and stabilize anyone needing emergency care, regardless of ability to pay or legal U.S. residency. Critics call it an unfunded mandate. It was part of a budget law signed by President Ronald Reagan.
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— The 1996 Mental Health Parity Act. It prohibits group health plans from setting lower annual or lifetime dollar limits for mental health benefits as compared with medical and surgical benefits.
— The 1996 Newborns’ and Mothers’ Health Protection Act. It requires plans offering maternity coverage to pay for at a least a 48-hour hospital stay following most normal deliveries, and 96 hours following a Caesarean section. The mental health parity and maternal health laws were signed by President Bill Clinton.
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