Glynn McGehee, an aide with Rep. Tom Price (R-Ga.), holds a poster that mocks… (J. Scott Applewhite / Associated…)
Reporting from Washington — As the Supreme Court opened a second day of arguments on President Obama’s healthcare law, the justices turned to the defining issue of the two-year legal battle over the contentious measure -- the requirement that Americans get health insurance starting in 2014.
That mandate, once embraced by both political parties, has been seized on by conservative critics of the law as an egregious example of government overreach that threatens Americans’ liberty. Lawyers for individual plaintiffs represented by the National Federation of Independent Business alongside 26 states will argue that before the court this morning.
Lawyers for the Obama administration, which started their argument first today, say that Congress has the authority to use the mandate to regulate health insurance, a key goal of the law the president signed in March 2010.
The court must decide whether the unprecedented requirement violates the Constitution or is a logical exercise of congressional power. Both sides in the case agree that without a mandate, key parts of the healthcare overhaul cannot stand, such as a provision that guarantees coverage to people with preexisting medical conditions.
How will the mandate work?
Starting in 2014, most Americans will have to get a health insurance plan that meets a basic set of standards or pay a tax penalty that will rise from $95 in 2014 to $695 in 2016. (The penalty for a family will be up to $2,085 in 2016.)
Among those exempt from the mandate will be low-income Americans, Native Americans and those with religious objections to medical coverage.
Why is it in the law?
There is broad consensus among health policy and insurance experts that guaranteeing health insurance to everyone, as the law does, is nearly impossible without a way to induce younger, healthier people to get covered and offset the cost of insuring older, sicker ones. The law also requires insurers to offer coverage to all Americans, even those with preexisting medical conditions. Without a duty to get insurance, people could wait until they got seriously ill and then sign up for coverage.
How can the federal government impose such a requirement?
The Constitution says Congress has the power to "regulate commerce" and to impose taxes to promote the general welfare. In the past, the court has upheld federal laws regulating all manner of business, from agriculture and aviation to who can be served at the corner coffee shop. The administration argues that the new insurance requirements are a regulation of commerce and therefore well within Congress’ power.
Why do the challengers say it is unconstitutional?
The states and other plaintiffs challenging the mandate argue that Americans who do not to get health insurance are not engaging in commerce. Therefore, they should be free from regulation by the federal government.
The plaintiffs warn that if Congress can regulate inactivity, such as a decision not to get health insurance, the federal government might be able to require Americans to get other products, like broccoli or automobiles.
How is the court likely to rule?
Since 1936, the high court has never struck down a major federal regulatory law on the grounds that Congress exceeded its power. And most legal experts think the court is likely to uphold the insurance mandate because of decades of precedent. But the five conservative justices have also consistently voiced concern about excessive federal power. And no federal law has ever required Americans to buy a product.