Supreme Court hears first day of health care arguments

Gregory Warner Mar 26, 2012

Kai Ryssdal: Once Chief Justice Roberts called the health care case this morning, it got pretty technical pretty fast. An hour and a half long discussion of an 1867 law called the Anti-Injunction Act, and whether the Justices can even decide the health care case right now.

Our health care reporter Gregory Warner was in the Supreme Court chamber today for the arguments. Hey Gregory.

Gregory Warner: Hey there, Kai.

Ryssdal: So what was it like today, man? Center of the universe, right?

Warner: Yeah. If you want to find a circus, just look for the TV cameras, right?

Ryssdal: That’s right.

Warner: There was chanting, signage, one side singing “Protect the family,” the other side singing “Protect the Constitutionality,” which rhymes. But look, I also overheard some fairly intimate conversations between the sensible opponents about medical needs. So it was fairly surreal on the steps of the Supreme Court.

Ryssdal: Did we get, though — I mean once you guys got inside through the metal detectors and into the chamber, do we have a sense of whether the Supreme Court is actually going to decide this thing? Because that was the nub of the case today, right, whether they have grounds to decide?

Warner: Well Kai, obviously, we won’t know for sure until the Court announces its decision in June or early July. Folks who read the tea leaves on this stuff said that the Court will hear the case. In fact, you could hear there was a lot of drawing the lines in the sand for tomorrow’s question, which is: Does Congress have the power to impose a fine on people who don’t buy insurance?

Here’s Justice Elena Kagan, she’s talking to the solicitor general, who’s representing the government, and she asks if not paying that penalty means that that person has committed a federal crime. He says no.

Justice Elena Kagan: And that’s because?

Solicitor General Donald B. Verrilli, Jr.: That if they don’t pay the tax, they violated a federal law.

Kagan: But as long as they’ve paid the penalty?

Verrilli: If they’ve paid the tax, then they’re in compliance with the law.

Justice Stephen Breyer: Why do you keep saying “tax”?

Verrilli: If they pay the tax penalty, they’re in compliance with the law.

Breyer: Thank you.

There’s Justice Breyer getting in his dig, but essentially implying: Is Congress overstepping its reach with the law? That’s going to be the question tomorrow.

Ryssdal: Right. Why does it matter, though, Gregory, whether Congress decides this thing this year or waits until 2014, 2015 — because the thing’s been sitting around for two years already, what’s another year or two?

Warner: The big issue is uncertainty. Look, the Obama administration made a decision early on — it was a political decision when they decided that this health care law, the major provisions, would not kick in until 2014. Now, that was good economically because it meant the law would be less of a bite on the deficit, because it comes later and that’s how accounting’s done, but that’s meant this four-year drag-out fight, and uncertainty’s taking a huge toll from hospitals to HR departments in companies. Businesses are waiting to make these crucial business decisions about health care.

I was talking to Zeke Emanuel, he’s a bioethicist at the Hastings Center; he was watching the hearings. He talks about that uncertainty.

Zeke Emanuel: Hospitals and doctors who are trying to redesign their care systems to cut costs and deliver better quality care — well, maybe the law won’t be the law, maybe the rules are going to change. So they’ve been holding back a little bit; insurance companies the same way.

So that’s why businesses care — get rid of that uncertainty, that’s the question for the Supreme Court.

Ryssdal: Right. All right, so let’s talk about tomorrow — the heart, a lot of people say, of the case — the individual mandate and whether the government can force us to buy health insurance. What are we looking for?

Warner: Look, this is something both sides agree on — health insurance only works if you have healthy people in the pool as well as sick people. Happens everyday in companies, big companies, where one worker will be healthy, another worker is sick — both pay the premiums and that pot of money basically pays for everybody’s health care. Now, the problem is that doesn’t at all work in the individual market, when people are alone. They don’t have a pool of people. So the government’s going to argue, ‘hey, we need to be able to tell people they have to buy insurance in order this health market can work.’ The states say ‘no, because if the government can force people to buy something, even health insurance, they can force us to buy anything — even broccoli.’

Ryssdal: And broccoli actually is where we’ll leave it today, because that’s where you’re going to come back to us tomorrow. Gregory Warner, he was in the Supreme Court chamber today; he’ll be back tomorrow with the latest on the health care decisions. Gregory, we’ll see you later.

Warner: Thanks Kai.

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