Healthcare reform with no mandate

The final day of arguments on healthcare reform before the U.S. Supreme Court focuses on whether the whole law needs to be stricken if the mandate goes down. Justices heard three days of arguments, ending Wednesday, on whether the Patient Protection and Affordable Care Act is constitutional. Day 1 focused on whether the justices can even hear arguments on constitutionality before all of the measure's provisions kick in. Tuesday's arguments centered on whether Americans can be forced to buy health insurance. Wednesday's arguments focus on whether the rest of the act can stand if the mandate is ruled unconstitutional. It also will consider whether the measure's expansion of Medicaid is constitutional given states bear half the burden of the program. Health insurers fear if the mandate is struck down but the rest of the law survives, they would be forced to accept millions more sick customers without enough new healthy customers to balance out the risk pool. Requiring healthcare coverage by law through an individual mandate is like making people buy broccoli, U.S. Supreme Court Justice Antonin Scalia said Tuesday. Solicitor General Donald Verrilli, representing the Obama administration, had argued virtually everyone needs healthcare -- or eventually will. Scalia, appointed to the court by President Ronald Reagan in 1986, said the argument defending the individual mandate -- requiring most Americans to carry insurance or pay a penalty -- could potentially apply to any product. "Everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market," he said. "Therefore, you can make people buy broccoli." Verrilli said food isn't a market in which a person's participation is unpredictable or involuntary. He said the law doesn't force people to buy something they don't want, but rather governs how they pay for something they inevitably will need. "It may well be that everybody needs healthcare sooner or later," Scalia said, "but not everybody needs a heart transplant." "That's correct, Justice Scalia, but you never know whether you're going to be that person," Verrilli replied, saying that's why the U.S. healthcare system is largely financed through insurance. Justice Anthony Kennedy -- appointed by Reagan in 1988 and widely considered the court's deciding vote -- told Verrilli the government faced "a very heavy burden" on the mandate requirement. "You are changing the relationship of the individual to the government," Kennedy said. The justices Tuesday considered whether Congress exceeded its constitutional authority to regulate interstate commerce in enacting the insurance mandate. Mandate challengers acknowledged the government could do many things to regulate the healthcare market -- including requiring people to pay for medical services with insurance or creating a system in which the government pays for everyone's care. Justice Ruth Bader Ginsburg, appointed by President Bill Clinton in 1993, said she saw "something very odd" about that point. "The government can take over the whole thing and we all say, 'Oh, yes, that's fine,'" she said, "but if the government wants to preserve private insurers, it can't do that." Paul Clement, representing 26 Republican-led states challenging the law, said Congress had options beyond a "government takeover." Congress could use its taxing and spending power to give insurers a subsidy so they could offer coverage to all possible policyholders, he said. It could alternatively require people to purchase insurance immediately before getting medical care, he said. "That would be regulating at the point of purchase," when individuals would be voluntarily entering the healthcare market, Clement said. Justice Elena Kagan, appointed by President Barack Obama, said: "It seems as though you are just talking about a matter of timing -- that Congress can regulate the transaction, and the question is, when does it make best sense to regulate that transaction." Why, she asked, would the Constitution permit Congress to make people buy insurance at the worst time, such as when they arrive at an emergency room, but prohibit a policy of requiring its purchase in advance of a medical emergency? A decision by the court is expected by the end of June.