Steven Pearlstein: Eat your broccoli, Justice Scalia

If there is a legitimate challenge to the law, my hunch is that it is likely to come over the question of whether the individual mandate is as narrowly drawn as possible to achieve its objective. If regulating the interstate market for health care requires regulating health insurance, and if assuring a healthy insurance market requires solving the problem of free-riders who drive up premiums and taxes for everyone else, then isn’t the solution to require everyone to buy “catastrophic” insurance?

Roberts asked that question twice, but got no satisfactory answer, either from the solicitor general or any of the other justices. The reason is that there is no good answer. The safer ground for health reform was always to base it, at least initially, on policies that cover major medical events such as a heart attack, a premature birth, or treatment of cancer or a serious chronic condition. Yet such an approach has always been rejected out of hand by liberal Democrats and powerful “disease lobbies” who were intent on finally achieving health-care coverage that was both universal and comprehensive. Now their over-reaching has not only driven up the cost of health reform and made it difficult to win broad political support, but has also put the entire law in constitutional jeopardy.

Steven Pearlstein is a Pulitzer Prize-winning business and economics columnist at The Washington Post.

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Supreme Court takes center stage in health-care debate: The U.S. Supreme Court is staging three days of arguments over the Patient Protection and Affordable Care Act.

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Three days of arguments on the health care overhaul wrapped up at the Supreme Court. Pointed questions show justices wrestling with where to draw the line on federal powers over the individual and the states. Decision expected in June.

In the end, Roberts will see the institutional peril in overturning the most significant piece of domestic legislation in a generation, particularly in the wake of the overtly partisan decisions of Bush v. Gore and the Citizens United. With Kennedy in tow, the chief is likely to articulate a modest new limit on Congress’s power to regulate interstate commerce that would allow health reform to proceed in some fashion. Or, as he hinted in oral arguments, he may duck the commerce clause altogether and simply uphold the individual mandate as a legitimate exercise of Congress’s taxing power. The cacophony of accompanying dissents and concurring opinions will make it difficult to figure out who won, who lost and exactly what precedent was set.

The law, in other words, remains an ass.