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* Chief Justice Roberts, Justice Kennedy could be pivotal
* Court's ideological divide apparent during arguments
* Supreme Court ruling may influence Nov. 6 elections
* Ruling on fate of the 2010 law expected by late June
By Joan Biskupic and James Vicini
WASHINGTON, March 27 The Obama administration
faced skeptical questioning from a U.S. Supreme Court dominated
by conservatives on Tuesday during a tense two-hour showdown
over a sweeping healthcare law that has divided Americans.
A ruling on the law's key requirement that most people
obtain health insurance or face a penalty appeared likely to
come down to Chief Justice John Roberts and Justice Anthony
Kennedy, two conservatives who pummeled the administration's
lawyer with questions.
But Roberts and Kennedy also scrutinized the two attorneys
arguing against the 2010 law, which is considered President
Barack Obama's signature domestic policy achievement.
The two pivotal justices on the nine-member court asked
highly nuanced questions on Tuesday, the second of three
straight days of oral arguments. They seemed torn on whether it
would be more of a break from past cases to strike down the
so-called individual mandate to obtain insurance or to uphold
Aggressive in their questioning of both sides, the justices
fired off hard-hitting queries about the limits of the federal
government's power and whether it could even extend to requiring
eating broccoli and buying gym memberships or cars.
While conservative justices took aim at the insurance
mandate, liberal justices supported it.
The administration's lawyer, Solicitor General Donald
Verrilli, told the justices that Congress, in passing the law,
was trying to address the troubling problem of shifting costs
from people who are uninsured to those who purchase coverage,
arguing "the system does not work" and lawmakers were addressing
"a grave problem."
At stake is the power of Congress to intervene in one of
U.S. society's most difficult problems - soaring healthcare
costs and access to medical care. Annual U.S. healthcare
spending totals $2.6 trillion, about 18 percent of the annual
gross domestic product, or $8,402 per person.
Roberts, leader of the five conservatives but far from the
most conservative of them, noted at one point that "since the
New Deal" policies of President Franklin Roosevelt in the 1930s,
the court has accorded Congress broad regulatory power.
Yet he and Kennedy seemed to asked: Had Congress gone too
far here, exceeding its authority under the U.S. Constitution?
They signaled they would uphold the individual mandate only
if they believed they were not giving Congress broad new powers
over people's lives.
JUNE RULING EXPECTED
The justices are likely to issue a ruling on the case in
June when the court traditionally recesses for the summer.
The court's decision on the insurance requirement provision,
which takes effect in 2014, could decide the fate of the massive
multi-part healthcare overhaul meant to improve access to
medical care and extend insurance to more than 30 million
The ruling would come just months before Obama seeks
re-election on Nov. 6. The law was passed when Congress was
controlled by Obama's fellow Democrats after a contentious
battle with Republicans dead set against it. The Republican
candidates vying for their party's nomination to challenge Obama
in November all denounce the law.
Challenging the law in court are 26 of the 50 U.S. states
and a small-business trade group. The law is reviled by U.S.
conservatives who say it infringes on individual freedom.
While activists on both sides expressed confidence they
would prevail, it was unclear from the arguments how the court
would rule. If the five conservative justices remain unified,
the law would fall. If even one conservative joins the four
liberals, the law would be upheld.
Tuesday's session was far more intense than Monday's
arguments when the justices appeared willing to overcome
questions about whether tax law prevented them from considering
the case for several years.
Under harsh questioning, Verrilli insisted the case stood
out because the insurance market covers virtually everyone.
Verrilli said in reference to the law: "The Affordable Care
Act addresses a fundamental and enduring problem in our
healthcare system and our economy."
Roberts and Kennedy were also piercing in their questions to
the two lawyers challenging the individual mandate about the
government's contention that Congress is validly regulating
people who already are in the market because virtually everyone
is going to need healthcare at some point.
"That's my concern in the case," Kennedy said, noting that
young, uninsured people affect the overall market by not paying
into it and ultimately receiving care over the long term.
In a similar vein, Roberts said at one point that the
healthcare market could be viewed as different from that for
cars or other products because everybody is in it.
COURT AND COUNTRY DIVIDED
Views of Obama's healthcare law that have long divided
Democrats and Republicans across the country played out also in
the ornate courtroom.
The four liberal justices, Stephen Breyer, Ruth Bader
Ginsburg, Sonia Sotomayor and Elena Kagan, all indicated that
they believed the mandate valid under the U.S. Constitution. Two
conservatives, Antonin Scalia and Samuel Alito, were vocal in
their skepticism about the requirement.
Scalia in particular seemed concerned that Congress and the
federal government would have unlimited powers if the law was
upheld. "What is left? If the government can do this, what else
can it not do?"
The ninth justice, conservative Clarence Thomas who is
expected to vote against the law, asked no questions. Thomas
last asked a question from the bench more than six years ago.
Kennedy, who often casts the decisive vote on the court,
voiced concern about changing the relationship between
government and the people governed by it "in a very fundamental
"Do you not have a heavy burden of justification to show
authorization under the Constitution?" he asked Verrilli.
Outside the white marble courthouse, a crowd of supporters
and protesters filled the wide sidewalk, marching, chanting and
carrying signs. A motorcycle shop manager from Massachusetts,
Michael Wade, called the healthcare law a "power grab" by Obama.
Supporters of the law marched and chanted: "We love Obamacare."
No past rulings are completely on point and many observers
have speculated about how the ideologically divided justices
will decide the limits of congressional power to address
society's most intractable problems. Not since 1936 has the
Supreme Court struck down a major piece of federal economic
legislation as exceeding congressional power.
Shares of health insurers and hospital companies closed
mixed on Tuesday, with the Morgan Stanley Healthcare Payor index
of insurers just off slightly.
Large insurer UnitedHealth Group was up 0.6 percent,
while shares of WellPoint fell 0.4 percent hospital
chain Community Health Systems was down 1.2 percent and
those of rival Tenet Healthcare were off 2.3 percent.
Taking up the challenge of fighting for and against the
insurance mandate were three of the country's top appellate
lawyers, including Verrilli for the administration and Paul
Clement, one of his predecessors as the government's top
courtroom lawyer during the Bush administration.
Verrilli took a low-key approach in his arguments and at
times the liberal justices, notably Kagan and Ginsburg, tried to
bolster his points and counter a barrage of skeptical questions
from the conservatives.
Coming to Verrilli's aid at one point, Ginsburg stressed
that healthcare was more about timing, that healthy people pay
in now and take it out when needed. "That's how insurance
Clement, arguing on behalf of the states challenging the
law, said Congress went too far and that the individual mandate
"represents an unprecedented effort" that has no limiting
A new New York Times/CBS News poll showed that a narrow
majority of Americans oppose the individual mandate, 51 percent
to 45 percent, but strongly supported other provisions of the
law covering pre-existing medical conditions and allowing young
adults to stay on their parents' health insurance plans.
On its website the Supreme Court posted the audio of the
oral argument as well as a transcript: here
The Supreme Court cases are National Federation of
Independent Business v. Sebelius, No. 11-393; U.S. Department of
Health and Human Services v. Florida, No. 11-398; and Florida v.
Department of Health and Human Services, No. 11-400.
(With additional reporting by Jeremy Pelofsky and Ian Simpson
in Washington and Lewis Krauskopf in New York; Editing by Howard
Goller and Will Dunham)