Today’s oral arguments focused on several important questions necessary to determine the constitutionality of the minimum coverage provision/individual mandate in the Affordable Care Act:
- Does an individual’s inaction (decision to not purchase health insurance) qualify as an economic activity that is subject to regulation?
- Is the mandate only regulating the how and when people pay for insurance, instead of compelling them to pay for insurance?
- Or is the Law creating commerce with the purpose to regulate it?
- Is there any limiting principle to the minimum coverage provision?
- Is Health Care Insurance a unique market, and what makes it unique to allow the minimum coverage provision?
- Courtesy of Justice Scalia – Can you make people buy broccoli? (Edtr Note – Trainofthought is very Pro broccoli)
Solicitor General Verrilli attempted to characterize the mandate as government regulation of how and when health insurance is purchased. Verrilli argued that the government’s action regulated “the means by which health care – by which health care is purchased” (p 4). Justices Scalia and Kennedy pushed back on this assertion immediately, questioning if instead Congress was creating commerce in order to regulate it.
Verrilli’s response was that the mandate was not creating commerce, instead – and this goes to the fundamental premise of the government’s argument and purpose for passing the ACA and individual mandate – that health care is a unique market in that:
“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, and the distinguishing feature of that is that they cannot -- people cannot generally control when they enter that market or what they need when they enter that market.” (p 5)
The Justices followed up by questioning whether this could be true of other markets, and if so, then are there limits to what Congress could do under the directive to regulate commerce.
As loyal Blog follower Luke points out – the question of a limiting principle is extremely important. Justices Alito and Kennedy seemed especially concerned by this notion, with Justice Scalia posing the broccoli hypothetical:
Could you define the market -- everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli. (p 13)
The Solicitor General distinguished health care with some help from Justice Ginsburg – stressing the unique problem of an individual’s relationship with others in the health care market.
I thought what was unique about this is it’s not my choice whether I want to buy a product to keep me healthy, but the cost that I am forcing on other people if I don’t buy the product sooner rather than later. (p 14-15)
He attempted to differentiate the mandate as only a regulation of the means of payment for health care insurance. Scalia asked whether or not the mandate would permit Congress to mandate that everyone join an exercise club. Verrilla argued that would not be permitted because the hypothetical health club membership “is not a means of payment for consumption of anything in a market.” (p 38-41)
From reading the transcript, and listening to the audio, it appeared that the solicitor general had trouble articulating a concise limiting principle (as Justice Breyer and Kennedy requested) for the minimum coverage provision.
As Respondent’s counsel Paul Clement argued against the minimum coverage provision, he stressed 2 main points. First, that Congress was creating commerce for the purpose of regulation in violation of their authority under the commerce clause. Second, that upholding the mandate would yield nearly unlimited power to Congress, who could hypothetically compel any mandate under its power to regulate commerce.
Clement noted that the main concern for opponents of the mandate is that it penalized someone for not acting. He stressed that in every prior case, Congress provided incentives and regulation for affirmative acts by people:
We didn't say when we had problems in the automobile industry that we are not just going to give you incentives, not just cash for clunkers, we are going to actually have everybody over 100,000 dollars has to buy a new car. (p 64)
During the third set of arguments by Michael Carvin (representing the National Federation of Independent Business), Justice Kennedy made a revealing statement that illustrates his main question on the uniqueness of the health insurance and health care markets:
And the government tells us that's because the insurance market is unique. And in the next case, it'll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets -- stipulate two markets -- the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That's my concern in the case. (p 104)
This statement could be a sign of sympathy coming from Justice Kennedy towards the mandate. The Justice elaborated that unlike other markets, here even if a young person refuses to buy insurance on the basis of their present health, they can still affect the market for others as they age to a point where they will eventually need the kind of health care that they cannot afford.
Don’t you love the theater? From what I’ve seen, upholding the mandate comes down to whether or not Justice Kennedy can reason a clear limiting principle on the mandate. It will be tricky. They may get some help tomorrow when the Court hears arguments on severability and when the Court revisits whether or not the mandate can be sustained as part of its tax power. Both Solicitor General Verrilli and Paul Clement argued one hell of a case, but Clement’s oral argument was clearly a step above. Law aside, bear in mind the politics looming in the background – the recent Citizens United ruling, lingering effects of Bush v Gore, and of course the upcoming November election.
So – have at it in the comments. I left a lot of analysis out to focus on the main points, but feel free to chime in on any part of the arguments.