Professors: Justices itching for meat of health care case - CBS News 8 - San Diego, CA News Station - KFMB Channel 8

Professors: Justices itching for meat of health care case

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SAN DIEGO (CNS) - It is difficult to predict which way the U.S. Supreme Court will rule on the constitutionality of the nation's health care system overhaul, but the justices are hankering to get to the meat of the case, two San Diego-based law professors said Monday.

The high court began three days of hearings on the health care issue Monday, focusing initially on whether it was premature for 26 states to bring their challenge, since the key component of the law hasn't taken effect.

The bigger stakes are Tuesday, when justices hear arguments on whether it is constitutional for Congress to compel Americans to purchase at least minimal health care coverage, said Bryan Wildenthal of the Thomas Jefferson School of Law, and Susan Channick of the Cal Western School of Law.

"The sense is the justices want to get to the merits of the case," said Channick, who monitored today's proceedings.

The question will be whether Congress has the power to regulate health care as a part of interstate commerce, Wildenthal said. The government will argue that "people are making a commercial decision" to purchase health coverage that, with everyone combined, will have an impact on commerce.

He said opponents will contend that buying health insurance is a private choice with minimal commercial impact.

Whether the justices end up viewing the mandate as a tax -- since violators will be penalized -- or a regulation will also be a question answered by the justices, he said.

Channick said the federal government's requirement of individuals to purchase a product from a private entity is a new concept that hasn't been considered before by the Supreme Court.

Both professors said they believe the justices will narrowly rule on the side of the federal government.

Some conservative justices have upheld the individual mandate to purchase health coverage as it worked its way through the court system, Channick said. Also, the high court tends to be deferential to Congress, and several provisions of health care reform have already gone into effect, she said.

Wildenthal said the best opponents can hope for would be a 5-4 margin to overturn the individual mandate, though it was possible that Chief Justice John Roberts and Justice Anthony Kennedy could be persuaded to join the other side. One of the most conservative justices, Antonin Scalia, has upheld broad powers to regulate commerce in the past, he said.

Arguments over commerce and the individual mandate will be moot -- for awhile -- if the justices buy today's argument that since no one has been penalized for failing to purchase health coverage, it is too early to challenge the law, Wildenthal said. He said such a decision could push challenges back to 2015.

Both professors said they expect a ruling by the end of June.

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