Bloomberg News

Justices End Historic Three Days of Debate on Health-Care Law

March 28, 2012

The U.S. Supreme Court (1000L:US) left the fate of President Barack Obama’s health-care law in doubt after concluding three days of arguments.

The justices indicated that they may throw out other parts of Obama’s signature domestic achievement if they strike down its core requirement that Americans obtain insurance or pay a penalty. The justices also considered whether Congress had the power to expand the Medicaid insurance program for the poor as part of the law.

Here’s a sample of the justices’ comments during more than six hours of arguments over three days that began March 26, the most in any case in the last 44 years. Justice Clarence Thomas asked no questions, as is his practice.

Anthony Kennedy:

“By reason of this court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than striking the whole thing.”

“The government is saying that the federal government has a duty to tell the individual citizen that it must 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.”

Stephen Breyer:

“If we look back into history, we see sometimes Congress can create commerce out of nothing. That’s the national bank, which was created out of nothing to create other commerce out of nothing. I look back into history, and I see it seems pretty clear that if there are substantial effects on interstate commerce, Congress can act.”

Samuel Alito:

“If the $350 billion from the individual mandate were to be lost, what would happen to the insurance industry, which would now be in the hole for $350 billion over 10 years?”

“Congress can force people to purchase a product where the failure to purchase the product has a substantial effect on interstate commerce, if what? If this is part of a larger regulatory scheme? Was that it? Was there anything more?”

“Today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax.”

Ruth Bader Ginsburg:

“Why should we say it’s a choice between a wrecking operation, which is what you are requesting, or a salvage job? And the more conservative approach would be salvage rather than throwing out everything.”

“People who don’t participate in this market are making it much more expensive for the people who do; that is, they will get, a good number of them will get services that they can’t afford at the point where they need them, and the result is that everybody else’s premiums get raised? It’s not your free choice just to do something for yourself. What you do is going to affect others, affect them in a major way.”

“This is not a revenue-raising measure because, if it’s successful, nobody will pay the penalty, and there will be no revenue to raise.”

Elena Kagan:

“The question is always, does Congress want half a loaf? Is half a loaf better than no loaf? And on something like the exchanges, it seems to me a perfect example where a half a loaf is better than no loaf.”

“All these uninsured people are increasing the normal family premium, Congress says, by a thousand dollars a year. Those people are in commerce. They are making decisions that are affecting the price that everybody pays for this service.”

John Roberts:

“Can the government require you to buy a cell phone because that would facilitate responding when you need emergency services?”

Antonin Scalia:

“My approach would say if you take the heart out of the statute, the statute’s gone. That enables Congress to do what it wants in the usual fashion. And it doesn’t inject us into the process of saying, ‘This is good, this is bad, this is good, this is bad.’”

“The federal government is not supposed to be a government that has all powers; it’s supposed to be a government of limited powers. And that’s what all this questioning has been about. What is left? If the government can do this, what else can it not do?”

Sonia Sotomayor:

“There is government compulsion in almost every economic decision because the government regulates so much. It’s a condition of life that some may rail against, but.”

“We’re going to tie the hands of the federal government in choosing how to structure a cooperative relationship with the states. We’re going to say to the federal government, the bigger the problem, the less your powers are.”

To contact the reporter on this story: Seth Stern in Washington at sstern14@bloomberg.net

To contact the editor responsible for this story: Steven Komarow at skomarow1@bloomberg.net


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