WASHINGTON, D.C. (CBS SF) — In the fight over President Obama’s health care law, nine justices of the U.S. Supreme Court heard arguments Tuesday on the part of the law that requires all Americans to have health insurance or pay a fine.
The Obama administration said that the mandate will make sure everyone has health care while keeping insurance affordable, while opponents contend it’s a dangerous new power for the government by forcing citizens to buy a product.
While it appeared to reporters in court that a majority of the justices were ready to describe the individual mandate as unconstitutional, University of California Hastings Law School professor David Faigman believes justices will ultimately uphold what many consider to be Obama’s signature achievement when the court rules in June.
“The inevitable march of history not only supports this law, but goes beyond this law,” Faigman, a constitutional law specialist, told CBS 5.
With health care costs accounting for 17% of the nation’s gross domestic product, Faigman concludes that it is well within Congress’ right to mandate that individuals purchase health insurance, equating it to motorcycle helmet laws.
“It was an individual liberty argument too,” Faigman explained. “I shouldn’t have to wear a helmet, I’m only going to hurt myself. And the fact of the matter is if you get brain damage and you can’t cover it and become a ward of the state and the state will have to take care of you — essentially this is the same argument.”
But the conservative justices and the key swing justice, Anthony Kennedy, expressed some serious doubts about the law on Tuesday.
Justice Kennedy, who often provides the decisive fifth vote, appeared troubled that Congress for the first time was ordering Americas to buy a product like insurance.
“That is different from what we have in previous cases. That changes the relationship of the federal government to the individual in a very fundamental way,” he said.
It is the issue at the heart of the case: the federal government’s power in people’s lives. The Constitution gives Congress specific, limited powers — one being the authority to “regulate Commerce.”
Opponents argued that doesn’t give Congress the power to create commerce by forcing people to buy insurance. Supporters contend uninsured people already are consumers of healthcare who just leave hospitals and taxpayers stuck with their bills.
The conservative justices and Kennedy, a moderate, expressed concerns that the law might give Congress broad new powers to dictate behavior.
Chief Justice John Roberts asked if Congress could force people to buy insurance — since everyone will need it someday — could it also require them to buy cell phones to call 911 when they eventually needed emergency assistance.
“You don’t know if you’re going to need police assistance,” said Roberts. “You can’t predict the extent to emergency response that you’ll need. But when you do and the government provides it.”
But Solicitor General Donald Verrilli, the administration’s top lawyer, responded to that question by saying, “No, Chief Justice, we think that’s different.”
Roberts also seemed troubled that if the Court upheld the law requiring Americans to buy insurance, what would Congress try next.
“And we can compel people to do things — purchase insurance in this case, something else in the next case,” he said.
Justice Scalia offered one idea. “Can I tell you what the something else is while you’re answering it?” he asked. “The something else is everybody has to exercise, because there’s no doubt that lack of exercise causes illness, and that causes health care costs to go up. “
All four of the court’s liberal justices defended the law. In one exchange, Justice Ruth Bader Ginsburg tossed a friendly question to Verrilli.
“I thought a major, major point of your argument was that the people who don’t participate in this market are making it much more expensive for the people who do,” she said.
(Copyright 2012 CBS San Francisco. All rights reserved. CBS News contributed to this report.)