The Supreme Court on Wednesday prepared to enter the last of its three days of arguments over the Obama health-care law, with justices set to weigh what happens to the rest of the overhaul if the court strikes down the requirement that individuals carry health insurance.
At Tuesday's arguments, the court's conservative justices sharply challenged the insurance mandate, raising the prospect of a 5-4 decision finding it unconstitutional. Justice Anthony Kennedy—nearly always the court's deciding vote in such cases—suggested the government faced a "very heavy burden" to make its case. He said the mandate took "a step beyond what our cases have allowed" Congress to do when exercising its power under the Constitution to regulate interstate commerce.
However, Justice Kennedy later seemed to sympathize with the government's argument that everyone is involved in health-care commerce because at any time they might need medical care. He said uninsured young people are "very close to affecting the rates of insurance and the costs of providing medical care," suggesting they, too, are engaged in commerce.
Wednesday morning, the court is hearing 90 minutes of argument on what should happen if the mandate is nullified. The law's challengers say the entire law should then be declared void.
The Obama administration argues that most of the law's provisions aren't connected to the mandate and should remain in place regardless. But it says that if the mandate goes, certain provisions intertwined with it must be struck down as well. Those provisions require health insurers to accept all prospective customers, even those who are already ill. The administration and health insurers say it would be impossible for insurers to accept all comers unless they are assured of gaining millions of new customers through the mandate to carry coverage.
An Atlanta-based federal appeals court took a third position last year when it ruled the insurance mandate unconstitutional. That court, the 11th U.S. Circuit Court of Appeals, said all other provisions of the law should remain in force.
Neither party to the case supports that approach, so the Supreme Court appointed Washington lawyer H. Bartow Farr to argue in its favor.
After lunch, the court will complete its six hours of argument with an hourlong session examining the health-care law's expansion of Medicaid, a joint federal-state insurance program for the poor. A group of 26 states challenging the law says it unconstitutionally coerces them to spend more on the program. Lower courts ruled for the Obama administration on that issue, saying the states could leave Medicaid if they wished.
The Supreme Court is expected to rule on the case by the end of June.