Bleak day for Obamacare with court's broccoli defence

If Americans are forced to buy health insurance, then maybe they could be made buy anything

IF THE government can force Americans to purchase healthcare insurance, can it also make them buy broccoli, mobile phones and burial services? Such hypothetical questions, not the common good, dominated the Supreme Court debate on the constitutionality of the individual mandate – the requirement that most Americans insure themselves by 2014 – which is the linchpin of the Patient Protection and Affordable Care Act, widely known as Obamacare.

The court concluded the public part of its politically charged review of president Barack Obama’s signature achievement yesterday as hundreds of protesters, for and against, rallied for a third consecutive day outside the court.

The key session regarding the mandate went badly for the government on Tuesday. “I don’t think the challengers could have hoped to have a better day, and I don’t think the government realistically could have had a more distressing day,” said Tom Goldstein, an appellate lawyer.

Donald Verrilli, the solicitor general who defended the Obama administration, delivered such a halting, convoluted performance that the White House yesterday felt compelled to defend him, calling Verrilli “an extraordinarily talented advocate who possesses a sharp mind, keen judgment and unquestionable integrity”.

Pessimism about the fate of Obamacare is based on hostile questioning of Verrilli by Chief Justice John Roberts and Justice Anthony Kennedy, the two (of five) conservative justices who it was thought might be persuaded to support the Bill. It remains possible that one of them – perhaps Kennedy, who usually provides the swing vote in difficult cases – could vote for the law.

Kennedy expressed the Republican vision of the healthcare Bill as a symbol of government over-reach, saying, “the reason this is concerning is because it requires the individual to do an affirmative act . . . and that is different from what we have in previous cases, and that changes the relationship of the federal government to the individual in the very fundamental way”. The government, he added, has a “heavy burden of justification to show authorisation under the constitution”. If the law is upheld, the conservative Justice Antonin Scalia asked: “What is left? If the government can do this, what else can it not do?” The law is based on the premise that Congress has the power to regulate commerce. “Can you create commerce in order to regulate it?” Kennedy asked. The government argues that commerce in healthcare insurance already exists, but is badly regulated.

Liberal, female justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan several times tried to help the struggling solicitor general. “Virtually everyone will use healthcare,” Sotomayor argued, explaining why the healthcare market was unique. “The people who don’t participate in the [health insurance] market are making it much more expensive for people who do,” Ginsburg said. Kagan said the uninsured already drive up the average family’s premium by $1,000 (€750) a year.

But if the government could force everyone to purchase insurance on the grounds that everyone eventually requires medical attention, why not force people to purchase burial services, since everyone will die, Justice Samuel Alito asked.

Broccoli was mentioned eight times. Everyone has to buy food, Scalia said. “Therefore, you can make people buy broccoli.” Outside the court, Representative Michele Bachmann told opponents of the Bill: “The government believes it has the power to tell you to buy vegetables.” In 1990, then president George HW Bush had broccoli banned from the White House and Air Force One, declaring: “I’m president of the US and I’m not going to eat any more broccoli.” The United Fresh Produce Association was delighted by the publicity. “From banned in the White House to the chambers of the US Supreme Court,” said its spokesman, Ray Gilmer. “Broccoli is getting respect.” Yesterday’s debate on the “severability” of the law – whether some 450 other provisions will remain valid – became more important with the perception after Tuesday’s hearing that the mandate is likely to be struck down. The non-partisan Congressional Budget Office says healthcare premiums will rise 15 per cent if measures forbidding companies from denying coverage or raising the cost based on medical history are maintained while healthy individuals are allowed to opt out.

“Half a loaf is better than no loaf,” Kagan said, meaning some of the law should survive. But Scalia expressed the conservative view that the entire law should be abolished. “You want us to go through 2,700 pages,” he said. “Is this not totally unrealistic . . . to go through one by one and decide each one?”

As the justices debate among themselves and draft opinions before handing down their verdict in late June, Obama’s legacy is not the only thing at stake. A Bloomberg News opinion poll found that three-quarters of Americans believe the court will be influenced by politics in its decision.

If, as appeared likely after this week’s debates, the five judges appointed by Republican presidents vote against the law and the four judges appointed by Democrats vote for it, the credibility of the court as an impartial body will be questioned.

Ironically, the individual mandate was originally proposed by the Heritage Foundation, a conservative think tank, and Republicans supported a mandate during 1993 debates on healthcare reform.