Tuesday's hearing on President Barack Obama's health care overhaul focused heavily on the mandate that would require every American to purchase health insurance or pay a penalty. Here are some highlights from Tuesday's arguments. Read the full Supreme Court transcript here.
"In the law of torts our tradition, our law, has been that you don't have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that's generally the rule.
And here 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 a very fundamental way."
"Justice Kennedy asked, can you, under the Commerce Clause, Congress create commerce where previously none existed. Well, yes, I thought the answer to that was, since McCulloch versus Maryland, when the Court said Congress could create the Bank of the United States which did not previously exist...
I would have thought that your answer - can the government, in fact, require you to buy cell phones or buy burials that, if we propose comparable situations... and Congress wanted to rationalize that system, Subject to Final Review wouldn't the answer be, yes, of course, they could"
"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?"
"These people are not stupid. They're going to buy insurance later. They're young and need the money now. When they think they have a substantial risk of incurring high medical bills, they'll buy insurance, like the rest of us. I don't know why you think that they're never going to buy it."
"It's true of almost every product, directly or indirectly by government regulation. The government says, borrowing my colleague's example, you can't buy a car without emission control. I don't want a car with emission control. It's less efficient in terms of the horsepower. But I'm forced to do something I don't want to do by government regulation...
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..."
"I don't see how we can accept your - it's good for you in this case to say, oh, it's just insurance. But once we say that there is a market and Congress can require people to participate in it, as some would say, or as you would say, that people are already participating in it, it seems to me that we can't say there are limitations on what Congress can do under its commerce power, just like in any other area - given significant deference that we accord to Congress in this area, all bets are off, and you could regulate that market in any rational way."
"The theory behind this law is that people are in this market right now, and they are in this market because people do get sick, and because when people get sick, we provide them with care without making them pay. And it would be different, you know, if you were up here saying, I represent a class of Christian Scientists... But absent that, you're in this market. You're an economic actor..."
"If the effect of all these uninsured people is to raise everybody's premiums, not just when they get sick, if they get sick, but right now in the aggregate... those people are in commerce. They are making decisions that are affecting the price that everybody pays for this service"
"A tax is to raise revenue, tax is a revenue-raising device, and the
purpose of this exaction is to get people into the health care risk - risk pool before they need medical care. And so it will be successful, if it doesn't raise any revenue, if it gets people to buy the insurance, that's - that's what this penalty is - this penalty is designed to affect conduct. The conduct is buy health protection, buy health insurance before you have a need for medical care. That's what the penalty is designed to do, not to raise revenue."
"In [Justice Breyer's] hypothetical the harm to other people from the communicable disease is the result of the disease. It is not the result of something that the government has done, whereas here the reason why there is cost-shifting is because the government has mandated that. It has required hospitals to provide emergency treatment and, instead of paying for that through a tax which would be born by everybody, it has required - it has set up a system in which the cost is surreptitiously shifted to people who have health insurance and who pay their bills when they go to the hospital."
"If being born is entering the market, then I can't think of a more plenary power Congress can have, because that literally means they can regulate every human activity from cradle to grave."
"The Constitution only gives Congress the power to regulate things that negatively affect commerce or commerce regulation. It doesn't give them the power to regulate things that are statistically connected to things that negatively affect the commerce - because if they have that power, then they obviously have the power to regulate everything, because everything in the aggregate is statistically connected to something that negatively affects commerce, and every compelled purchase promotes commerce."
"In the health care market - the health care market is characterized by the fact that aside from the few groups that Congress chose to exempt from the minimum coverage requirement - those who for religious reasons don't participate, those who are incarcerated, Indian tribes - virtually everybody else is either in that market or will be in that market."
"All this minimum coverage provision does is say that, instead of requiring insurance at the point of sale, that Congress has the authority under the commerce power and the necessary and proper power to ensure that people have insurance in advance of the point of sale because of the unique nature of this market."