Supreme Court justices and opposing lawyers grappled with the question of limits on the power of Congress to regulate interstate markets Tuesday in the middle of three days of hearings at the high court over the constitutionality of the Patient Protection and Affordable Care Act, the healthcare reform bill passed by Congress and signed by President Obama in 2010. There were even sharp differences over just what market is being regulated under the act, who is in it, and when and how one enters it. At one point Justice Stephen Breyer suggested that everyone enters the federally regulated healthcare market upon entering the world.
"And then the question is when you are born, and you don't have insurance. And you will in fact get sick, and you will in fact impose costs, have you perhaps involuntarily — perhaps simply because you are a human being — entered this particular market, which is a market for health care?" Breyer asked attorney Michael Carvin (shown in photo), representing the National Federation of Independent Businesses, which opposes the law.
"If being born is entering the market," Carvin replied, "then I can't think of a more plenary power Congress can have, because that literally means they can regulate every activity from cradle to grave."
The debate over where Congress' regulatory power ends gave rise to questions about a wide range of hypothetical mandates regarding, in no particular order of importance, automobiles, broccoli, and cell phones. Addressing the "grave" aspects of "cradle-to-grave" regulation, Justice Samuel Alito challenged Solicitor General Donald Verrilli, defending the law, to explain why the power to require individuals to buy health insurance might not also be used to require the purchase of burial insurance.
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Photo of Michael Carvin: AP Images