File image of the United States Supreme Court building in Washington, D.C. from the Associated Press.
WASHINGTON (USA TODAY) - The Supreme Court's conservative justices appeared deeply critical Tuesday of the requirement that all Americans purchase health insurance, the constitutional issue at the core of the legal challenges to President Obama's landmark health care overhaul.
Three of the four most conservative members of the high court expressed deep reservations that upholding the mandate could significantly alter the powers of the federal government. Justice Anthony Kennedy, often the court's swing vote, also expressed skepticism. The fifth conservative justice, Clarence Thomas, was silent.
The court's four liberal justices appeared more convinced that the government has the authority to compel people to buy insurance because their uninsured status affects others' costs, and they will need health care eventually. Kennedy and Chief Justice John Roberts voiced some sympathy for that view as well.
MORE: Transcript of Tuesday's arguments
By the end of the extraordinary two-hour session, it seemed that the court was almost evenly divided, with Kennedy and perhaps Roberts as the most likely swing votes.
Audio and more from Day 2 of health care arguments
Kennedy said that the law "changes the relationship of the federal government to the individual in a very fundamental way." He pressed the Obama administration's lawyer, Solicitor General Donald Verrilli, on why the insurance requirement wouldn't leave Congress with nearly limitless authority.
"When you are changing the relationship of the individual to the government, do you not have a unique obligation to show authorization under the Constitution?" Kennedy asked.
The court's conservatives peppered Verrilli with questions about whether Congress could also force Americans to buy broccoli, burial insurance or cellular phones as part of commercial regulations down the road. Verrilli said lawmakers couldn't do that, but the justices seemed unconvinced.
"Once you're into interstate commerce and can regulate it, pretty much all bets are off," Roberts said. Added Justice Antonin Scalia: "What is left? If the government can do this, what else can it not do?"
During the second half of the two-hour session, however, Kennedy and Roberts sharply questioned lawyers for the 26 states and business consortium challenging the law.
Kennedy said people who are uninsured constitute "an actuarial reality that can and must be measured for health care purposes," even though they are not actively involved in commerce. Near the end of the session, he said health care and health insurance may be different from other economic markets in that "the young person who's uninsured" at least comes "close" to affecting the overall market.
Roberts preceded most of his inquiries by noting the government's position that the health care market is unique, because those without insurance raise costs for those with it, and almost everyone will need health care services.
"Surely regulation includes the power to promote," the chief justice said.
The insurance mandate is the single most controversial part of the 2-year-old health care law. It has also raised significant questions about the scope of Congress' power to regulate the nation's economy and is at the core of the challenge to the health care law.
Opponents of the law are likely to need the votes of all of the court's conservatives to succeed in having the overhaul declared unconstitutional.
The government's contention that not buying health insurance is an act of interstate commerce subject to federal regulation is likely to be crucial, because its other argument - that the law is constitutional under Congress' taxing power - seemed to carry little weight with either side Tuesday.
Justices Ruth Bader Ginsburg and Sonia Sotomayor, two of the court's four liberal members, questioned whether Congress could justify the mandate under its separate power to levy taxes.
"Congress determinedly said 'This is not a tax,' " said Justice Elena Kagan.
The conservative justices questioned whether Congress was regulating the health care market or just the market for insurance, and whether the government could force people to engage in commerce in order to regulate it. Roberts pressed Verrilli on why Congress would require that the coverage people buy might include services they will never need, such as substance abuse counseling or pediatric care.
Ginsburg asked whether the mandate was necessary to keep the uninsured from passing off the costs of their health care to others. "It's not your free choice just to do something for yourself. What you do is going to affect others, affect them in very negative ways," she said.
"You could say the same thing about not buying cars," Scalia replied.
Verrilli told the justices that the health care law "addresses a fundamental and enduring problem in our health care system," and that Congress has clear authority to regulate the marketplace for health services. He challenged the notion that upholding the law would broaden Congress' already expansive authority to regulate interstate commerce, saying the health care market is unique.
Congress passed the insurance mandate to control costs. The new health law bans insurers from discriminating against people with pre-existing conditions or high medical costs, either by denying coverage or inflating premiums. For insurers to do that without raising rates on everyone, they need more people buying insurance.
The argument in favor of the mandate is equally clear: Health care is one of the largest sectors of the nation's economy, and millions of Americans without insurance - including those who can't afford it and others who are healthy but risk catastrophic illnesses for which they cannot pay - pass their costs on to the government, businesses and other Americans. That, the Obama administration has argued, puts the mandate squarely within the Congress' constitutional power to regulate interstate commerce.
The administration is also urging the justices to conclude that the penalty for not purchasing insurance is separately authorized by Congress' power to levy taxes.
Opponents, however, say such a mandate is unprecedented. They argue that even if Congress has wide latitude to regulate commerce, it cannot force people to enter the marketplace for health insurance if they don't want to. And they have warned that upholding the mandate would effectively erase constitutional limits on Congress' power. If this law is constitutional, they argue, so is one requiring Americans to buy broccoli.
With few exceptions, the Supreme Court has concluded in the past the Constitution's Commerce Clause and Necessary and Proper Clause give Congress wide latitude for regulating issues that have a "substantial effect" on interstate commerce.
The case most often cited, Wickard v. Filburn, is from 1942, when the Supreme Court ruled Congress could fine a farmer for growing too much wheat, even if it was for personal consumption, because such home consumption impacted the interstate market. More recently, the court has relied on those powers to uphold laws that outlaw marijuana and to allow for the indefinite detention of sexual predators, though it has also overturned laws banning guns near schools and giving gender violence victims the right to sue in federal court.
The lower courts have rendered a split decision, though more have upheld the law. Federal district courts in Virginia and Florida declared the mandate unconstitutional, as did the 11th Circuit Court of Appeals in Atlanta.
The six-hour Supreme Court hearing, spread over three days, continues Wednesday with separate sessions on the mandate's potential severability from the rest of the law and the expansion of the federal-state Medicaid program.