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Health Law Faces Questions From Skeptical Supreme Court Justices

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A health-care law supporter, left, argues with protestors outside the Supreme Court in Washington on March 27, 2012. Photographer: Rich Clement/Bloomberg

March 27 (Bloomberg) -- U.S. Supreme Court justices hinted they may strike down a requirement that Americans obtain insurance on their second day hearing arguments over President Barack Obama’s health-care law. Questions from justices indicated they might split 5-4 with the court’s five Republican appointees joining together to oppose the measure.

Today’s main issue was whether Congress has the power to enact a law that requires people obtain health insurance, under the clause of the Constitution that allows it to regulate interstate commerce or possibly other provisions.

Here’s a sample of comments from eight of the nine justices today. Justice Clarence Thomas asked no questions, as is his practice.

Anthony Kennedy:

“The government is saying that the federal government has a duty to tell the individual citizen that it must act. And that is different from what we have in previous cases, and that changes the relationship of the federal government to the individual in the very fundamental way.”

Stephen Breyer:

“If we look back into history, we see sometimes Congress can create commerce out of nothing. That’s the national bank, which was created out of nothing to create other commerce out of nothing. I look back into history, and I see it seems pretty clear that if there are substantial effects on interstate commerce, Congress can act.”

Samuel Alito:

“Congress can force people to purchase a product where the failure to purchase the product has a substantial effect on interstate commerce, if what? If this is part of a larger regulatory scheme? Was that it? Was there anything more?”

Ruth Bader Ginsburg:

“People who don’t participate in this market are making it much more expensive for the people who do; that is, they will get, a good number of them will get services that they can’t afford at the point where they need them, and the result is that everybody else’s premiums get raised? It’s not your free choice just to do something for yourself. What you do is going to affect others, affect them in a major way.”

Elena Kagan:

“All these uninsured people are increasing the normal family premium, Congress says, by a thousand dollars a year. Those people are in commerce. They are making decisions that are affecting the price that everybody pays for this service.

John Roberts:

‘‘Can the government require you to buy a cell phone because that would facilitate responding when you need emergency services?’’

Antonin Scalia:

‘‘The federal government is not supposed to be a government that has all powers; it’s supposed to be a government of limited powers. And that’s what all this questioning has been about. What is left? If the government can do this, what else can it not do?”

Sonia Sotomayor:

“There is government compulsion in almost every economic decision because the government regulates so much. It’s a condition of life that some may rail against, but.”

To contact the reporter on this story: Seth Stern in Washington at

To contact the editor responsible for this story: Steven Komarow at

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