Protesters Compete For Justices’ Attention as Supreme Court Takes Up Obamacare

By Elizabeth Harrington | March 26, 2012 | 7:31 PM EDT

( – Protesters, activists and politicians convened at the Supreme Court on Monday for the first of three days of oral arguments on the constitutionality of the Affordable Care Act, the sweeping federal health care law passed two years ago.

A mix of “Protect My Health Care” union signs and “Don’t Tread On Me” flags competed just outside the steps of the Supreme Court where its justices heard the first arguments in the case brought by 26 states on whether the Constitution grants the government the authority to require its citizens to purchase health insurance.

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“This is a mandate and we think that being forced to make this purchase will be unconstitutional and we’re going to continue to fight to show that this is an unconstitutional act,” said Rep. Marsha Blackburn (R-Tenn.) as she left the court.

The court will hear six hours of oral arguments, the most for a case since the 1960s, starting with 90 minutes on the Anti-Injunction Act (AIA), an 1867 law that forbids legal challenges for taxes in a law that have not been levied yet. The penalties imposed for not abiding by the individual mandate will take effect in 2014. Under the AIA, the justices could effectively punt a decision on the case until 2015.

Mark Shurtleff, the attorney general of Utah, the fourth state to sue the government over Obamacare, is confident, however, that the justices will hear the case and issue a ruling at the end of the court’s session in late June.

“Out of today it seemed like most of the justices by the questions, I think they’re going to go ahead and let this case go forward, they’re going to rule that the Injunction Act does not apply,” Shurtleff told after the first proceedings.

Protesters supporting the law had no doubts the law is constitutional, comparing it to state seat belt and helmet laws.

“The Constitution gives Congress the right to regulate the national economy," said one unidentified pro-Obamacare supporter.

“Essentially what happens is that all Americans are, at some point in their lives, whether they choose to buy insurance or not, they're consuming health care one way or another,” he said. “Whether they choose not to ensure themselves, they do eventually consume health care -- so regardless of whether they're buying it or not, they are still consuming the product, so I think there's a strong legal foundation for Congress to regulate that.”

Those protesting said it is an unprecedented overreach of government power.

“If this law is upheld then the federal government can make us buy anything, from broccoli to a Chevy Volt, it could make the states do anything,” said Curt Levey, executive director for the Committee for Justice, standing next to boxes of petitions against the law he planned to deliver to the Supreme Court justices.

“That’s certainly not what the Founding Fathers intended, that’s not what the enumerated powers in the Constitution say and I don’t think that’s what the justices of the Supreme Court want,” he said, whose organization has amassed over 100,000 petitions in all.

On Tuesday the justices will hear arguments on the individual mandate, followed by the question of severability and whether the law can remain intact if the mandate is struck down.

Republican presidential candidate Rick Santorum joined the crowd as he brought his campaign to the Supreme Court steps to argue that he’s the best candidate in the race over frontrunner Mitt Romney.

“There's one candidate who's uniquely disqualified to make the case. That's the reason I'm here and he's not,” Santorum said of his Republican rival, saying Obamacare is “the most important issue in this election.”

“If we make this the central issue in the campaign and we're successful, there's no doubt that Obamacare will be repealed in one form or another,” Santorum said. "That not going to be the case with Gov. Romney."

Former Acting Solicitor General Neal Katyal, who defended Obamacare in the lower courts, said if the Supreme Court strikes down health care reform it would be an “unelected court” taking decisions off the table of the American people.

“And so it could imperil a number of reforms in the New Deal that are designed to help people against big corporations and against, indeed, big governments,” he said.

Katyal said the government’s position is that health care is something all Americans consume, and those who do not have health insurance pass the cost off to the taxpayers.

“They're the ones who have to pick up the tab for those who don't have insurance,” Katyal said in an interview with AFP on Sunday.  “We are not regulating what people buy, we're regulating how people finance it.”

“The problem is that that argument doesn’t really put any limits on the federal government,” said Levey.  “Everyone will eat, does that mean the federal government can force us to buy broccoli?  Everyone needs some form of transportation, does that mean they can force us to buy a Chevy Volt?”

Buddy Caldwell, attorney general of Louisiana and a plaintiff in the case, said the individual mandate is “ridiculous.”

“This has been an unnecessary exercise by the Congress,” Caldwell said on the steps of the Supreme Court. “And to force an individual every day for the rest of their lives, every month to have insurance is just ridiculous.”

“I don’t think it’s going to pass muster in here and if the mandate falls, the whole bill falls,” Caldwell said, adding, “a nd then somebody needs to get back to work to fix health care in this country,” Caldwell said, who prior to the health care law was a Democrat who has since switched parties.

“I was the Democrat that signed on,” he said.  “I’m a Republican now.”