Supreme Court Hears Health Reform

Monday, March 26, 2012

Linda Greenhouse, former Supreme Court reporter for the New York Times, lecturer at Yale Law School, and whose most recent book is The U.S. Supreme Court: A Very Short Introduction, previews the Supreme Court arguments for and against health insurance reform.

WATCH: It's A Free Country's Anna Sale Previews The Hearings

Comments [47]

Frank, Long Island City

I like the auto insurance comparison. I see absolutely no difference between someone who chooses to own a car and someone who chooses to enter a hospital.

That said, I find few sympathizers when I say citizens should be able to opt out of mandatory health reform. Opting out should be a serious and well documented choice, perhaps made over years, involving this citizens vow: "I shall never enter, or attempt to enter, a hospital, for my own health's sake, without having full payment ready."

The trick is that nearly everybody, if not everybody, will in fact, require a hospital one day - even Republicans - and vows will be broken.

Apr. 01 2012 12:52 PM

I believe discussion of the automotive insurance is a poor analogy and may confuse the issue.

Compulsory auto insurance stems, I think, from each state's police powers (to protect the health and welfare of the residents). The 10th Amendment to the federal Constitution reserves to the states the authority to govern such affairs which are not already delegated to the federal government. Some states use that power to compel drivers to buy auto insurance. In doing so, the state "protects" other drivers and non-drivers against those who would drive uninsured.

But, the argument here is whether the Congress of the federal government can, through the Commerce Clause of Article I of the federal Constitution, so regulate the purchase and sale of healthcare by mandating each person to either buy healthcare or pay a penalty. The healthcare industry certainly touches upon interstate commerce.

Indeed, per Wickard v. Fillburn (1942), even an individual growing wheat for personal consumption touches upon interstate commerce enough that Congress may regulate that economic activity. Likewise, per Katzenbach v. McClung (1964), the Supreme Court ruled that it was within Congress' power under the Commerce Clause to forbid racial discrimination at restaurants. Congress did so in the Civil Rights Act.

Those cases alone are not determinative, however, but they are strong precedents which extended the power of the Commerce Clause of the federal government.

By contrast, compulsory auto insurance insurance is the province of state government.

The analogy is only attractive because both address compulsory purchases: one for owner-drivers of cars; the other for owners of bodies (unless exempt from the law).

Whether the healthcare law is stealth head tax or a penalty for not complying with the healthcare mandate, I don't know. Either way, it's not like compulsory auto insurance.

Mar. 27 2012 04:10 PM
Joe from Bayside

If you don't like the auto insurance analogy, then what about looking at public education as mentioned earlier by other comments? The major difference is the federal/state issue, obviously, but, in essence it is a govt. mandated program paid by taxpayer money whether or not that particular taxpayer partakes of the service. Like education of our young, the health of our citizens should be a basic right because it benefits both the individual and our society as a whole. The constitution's preamble says to "promote the general welfare" and that should be reason enough for requiring this health coverage. Let's be frank. If education had become an industry, as it threatens to do now, and as health care already has become, then there would not be free public education in this country. There was a time when the only people getting educated were those who could pay for it. Reformers saw the value of education and prevailed. Otherwise, those with more commercial interests would be making a buck on this right as well.

Mar. 27 2012 01:34 PM
Tom P from NJ

The auto insurance analogy does not work. You are only compelled to have insurance if you wish to register a car. If everyone had to purchase auto insurance whether they owned a car or not, then it would work.

Single payer is the only thing that will work. It gets rid of the birth control issue and the argument that you are coercing people to purchase something from a private provider that they do not want.

Mar. 27 2012 10:31 AM
Peter Brownscombe from East Village

A well organized national program euthanasia for the uninsured is the answer. Maintains the right of the individual to avoid health insurance while protecting the all important profits of the insurance industry.

Mar. 26 2012 11:39 PM
David from Fredericksburg, VA

@Homer from Boston

"Are there any sympathetic cases out there who might make their argument look good? That is, people who refuse to buy health insurance out of principle or religious conviction and then just pay out-of-pocket in a show of personal responsibility? Again, it would make their case more compelling if they could produce a few examples of precisely whose right to live without health insurance they are defending."

None that I can name

Mar. 26 2012 11:56 AM
David from Fredericksburg, VA


As usual, you're leaping to a conclusion as to what my opinion on the healthcare law is.

Healthcare in this country is a mess. This law makes many problems worse. One of the big ones is cutting Medicare and Medicaid even further. Most people do not understand that the federal government is stealth taxing those with private insurance. Medicare (and Medicaid even more so) does not cover the cost of care. The local hospital reported that in 2010, they provided $27 million in uncompensated Medicare care and $15.7 million in uncompensated Medicaid care. (

Where do you think this shortfall is made up? How is forcing greater losses on hospitals going to result in lower costs for the private citizen?

I'm not sure on the constitutionality of the healthcare law. I didn't hear a single convincing, or even thought provoking argument for it being constitutional until this morning's news. The argument was made that free riders are engaging in health care commerce. This point seems to have some merit - let's see what the Supreme Court has to say.

Mar. 26 2012 11:29 AM

Homer from Boston ~

Go slow, he's having a hard time keeping-up.

Mar. 26 2012 10:59 AM


Mar. 26 2012 10:57 AM
Homer from Boston

@David: So *these* are the people the Republicans are defending? The latte-drinking, Escalade-driving, no-health-insurance-having free riders whose medical care is covered by the rest of us -- these are now the brave freedom fighters who are courageously resisting the infringement of their God-given right to have no health insurance?

I mean, seriously, are the Republicans raising all of this hullabaloo at the Supreme Court for the sake of defending free riders? Are there any sympathetic cases out there who might make their argument look good? That is, people who refuse to buy health insurance out of principle or religious conviction and then just pay out-of-pocket in a show of personal responsibility? Again, it would make their case more compelling if they could produce a few examples of precisely whose right to live without health insurance they are defending.

Mar. 26 2012 10:57 AM

The right can't get behind "Obamacare" or the correct solution, single payer because it makes too much sense.

And, more likely, because the man proposing it happens to be black.

Mar. 26 2012 10:51 AM

This "car insurance" theme keeps popping up. There are two things wrong with it. 1) Your choice to drive a car drags in certain other requirements, including licenses, registrations, and insurance. Choose not to drive and that all goes away. 2) All auto insurance is a state matter. I don't believe that anyone in MA can argue overreach for that state to require its citizens to obtain health insurance. But the nature of authority changes when you move from state to federal government.

Mar. 26 2012 10:48 AM
David from Fredericksburg, VA

@Trish from nj

There are in fact 2 major points:
1. As others have pointed out, owning a car is optional, breathing is not.
2. The State requires (or doesn't) car insurance. States can do some things the Federal Government can't (see the 10th amendment).

Mar. 26 2012 10:48 AM

RE: Corrections below

..."ARE" NOT analogous.

The health insurance INDUSTRY siphons-off...

Don't want the pedantic grammar police batons coming down!

Mar. 26 2012 10:47 AM

Why are liberals supporting this? Why aren't conservatives? Because this conservative-conceived variety of universal health care was the legislation of a Democratic president and that's all partisans need to know to decide whether they're for or against it. Did no one notice the irony of Obama praising the student loan reform, attached as a rider to his health care bill, for "eliminating the middle man"? Why are liberals supporting a mandated investment in just the private, for-profit corporations, parasitic middlemen all of them, that have no small share in the blame for our exorbitant cost of health care? I would love for this to be declared unconstitutional. It would be back to the drawing board with ill-conceived concessions to the contrarian right off the table.

Mar. 26 2012 10:45 AM
David from Fredericksburg, VA

@Homer from Boston

I work in a medical practice. You would be amazed at the people with no health insurance. Sure many are too poor, but many, many are just free riders. I'm talking about people driving brand new cars (like Escalades, not Kias), wear designer sunglasses, have designer pocketbooks & walk in with a Starbucks Latte.

Mar. 26 2012 10:44 AM

Health insurance and automobile insurance is NOT analogous.

I can choose to NOT purchase an automobile if I feel I can not afford to insure it.

I can NOT choose to not purchase a human body. I'm stuck with it and it requires healthcare.

The health insurance siphons-off ENORMOUS sums of out GDP into the pockets of Korporations™ and their executives.




Mar. 26 2012 10:41 AM
David from Fredericksburg, VA

dboy - wrong again.
Many countries provide universal healthcare privately. Japan is one example that immediately comes to mind.

Mar. 26 2012 10:40 AM
Judith from New York

If the question is whether this law is constitutional and/or whether this is a matter of regulating commerce, I am wondering if the Supreme Court is juxtaposing the Obama Care law to the law about having car insurance. I am not sure how the constitution scholars can find a difference between not allowing a person to drive a car for approximately 40 to 60 years without having basic insurance and driving a human organism for approximately 80-100 years without having health insurance. How is the one more and the other less irresponsible? Or, do we expect a revision of the car insurance law as well?
Alternatively, is law beginning to be based on politics rather than on the moral and economic interests of the society?

Mar. 26 2012 10:38 AM
Homer from Boston

I think the central irony here is that the people insisting on a fundamental God-given, inalienable right to live without health insurance are people WHO CHOOSE TO HAVE HEALTH INSURANCE in the current health-care-optional world.

If the anti-Obamacare side could produce some examples of people who could afford to buy health insurance today but choose not to, that would make their case much more compelling. But, as it is, this critical universal right that they are demanding is not a right they choose to exercises in their own lives.

Paul Clement, Mitt Romney, Newt Gingrich, Rush Limbaugh, and all the other Republican politicians and thought leaders all choose to buy health insurance. In fact, almost everybody who can afford it chooses to buy health insurance. How crucial could the fundamental human right to decline health insurance be?

The only people I know who could afford to buy health insurance but willfully choose not to are young men with freelance jobs who think they are invincible. Are these the freedom-fighters whose liberty the GOP is defending? If so, it's a strange choice of poster boys. Because when they have motorcycle accidents and go to the emergency room, *I* wind up paying for their care because they were too reckless to buy health insurance. I consider that an imposition on MY liberty.

Mar. 26 2012 10:37 AM

Furthermore, how many jobs would be created if business was NOT required to provide health benefits for their employees???

Let's talk about "regulation". The requirement for the private sector to provide health insurance is the primary obstacle to new hires. The burden to business is onerous.

Removing this responsibility to business is fundamentally a GOP, pro business, conservative stance.

We solve a multiplicity of problems with single payer, universal healthcare; direct patient/healthcare is more efficient - costs come down, people get the care they need, business is free to hire, workers are free to change jobs or START NEW BUSINESS... AND HIRE MORE WORKERS!!!

Every CIVILIZED country in the world has this CHEAPER, more efficient and compassionate system except US!!


Mar. 26 2012 10:33 AM
Marsha Brown from Queens, NY

Isn't there precedent for the Federal Government "forcing" people to take out insurance in the requirement that people in the Mississippi flood plain take out flood insurance? Every time we hear/read about floods there, mention is made of the required Federal flood insurance.

BTW, couldn't get through my telephone -- as per usual.

Mar. 26 2012 10:32 AM
David from Fredericksburg, VA

Ms. Greenhouse's mention on voter ID sparked my memory of moving within NJ (from Middlesex county to Hunterdon county). I was apalled that I was able to register to vote without any proof whatsoever that I was entitled to vote.

Mar. 26 2012 10:31 AM
jgarbuz from Queens

I think socialized medicine like socialized public school system will end up a costly failure to deliver much of what is promised. However, as a society we have decided to make education for the masses supported in great part by the taxation, with the rich paying proportionately more of their incomes in taxes, and, ever since the 1960s have decided to make much of our health services for the masses based on general taxation as well. We consider primary education and primary health services as public goods to be supported by taxation. The only question is, how MUCH of both services are to be supported by public taxes.

Mar. 26 2012 10:30 AM

she teaches at Yale?...the college?...

Mar. 26 2012 10:28 AM
Sophie from Poughkeepsie, NY

I agree with DBoy.

Single payer is the way to go with the option to buy additional insurance as a supplement.

Mar. 26 2012 10:27 AM
Edward from NJ

The government penalizes people for their lack of activity all the time. If you don't have a mortgage, you're paying a penalty. If you don't have children, you're paying a penalty. If you don't give to charity, you're paying a penalty. Every single "tax break" penalizes the people who don't choose to partake in the activity that the deduction is intended to encourage.

Mar. 26 2012 10:26 AM
skeptical sue from Teaneck,

I have a problem with the insurance companies and their manipulation of the health industry. According to Greenhouse, all those paying for health insurance pay ca. $1000 more to cover the uninsured. Will the cost of coverage drop if this legislation is upheld?

Mar. 26 2012 10:25 AM
Sheldon from Brooklyn

Amen - Dboy

Mar. 26 2012 10:23 AM

Rule based on the law? You've got to be kidding. I might have bought that before Bush v Gore or Citizen's United, but not now.

Mar. 26 2012 10:22 AM
Sophie from Poughkeepsie, NY

Ms.Greenhouse, please stop swallowing loudly, you sound as if you're eating your breakfast!

Mar. 26 2012 10:22 AM
Sarah Hawkey from Upper West Side

The question that underlies this case is whether health care is now a basic human right in America.

Mar. 26 2012 10:21 AM

We could save all of us from this RIDICULOUS discussion if we simple implemented SINGLE PAYER healthcare!!!

I for one, am NOT interested in being FORCED to buy an inferior "insurance" product from a korrupt korporation®.


Health insurance is NOT health care!!

Eliminate the immoral middle man!!

Mar. 26 2012 10:20 AM
RAI from NY, NY

Obviously, I'm exaggerating, but sometimes I get the impression that the conservative (right-wing) majority on the present Supreme Court would, if given half a chance, reinstate Dredd Scott and Plessy v. Ferguson, and Clarence Thomas would write the majority opinions.

Mar. 26 2012 10:20 AM
Sheldon from Brooklyn

Trish - the difference is - you don't have to drive a car.

Mar. 26 2012 10:19 AM

This woman guest is scaring me...she is an expert on what?...We have to do what the gvt says cause thats the way it is.

Mar. 26 2012 10:18 AM

The genuine question is whether there are any limits on the commerce power and what they might be. For instance, under Greenhouse's view of the clause, it doesn't seem that a constitutional amendment was necessary to institute Prohibition. Would she be happy to see some future Congress simply enact some similar sweeping regulation?

Mar. 26 2012 10:17 AM
Chriss from Montclair

Add me to the "I can't believe that Greenhouse was the go-to person for this segment."

Her admitted bias is breathtaking, especially for a "reporter."

Mar. 26 2012 10:17 AM
FM from NYC

Health care decision.
I have a question for your experts, isn't social security itself similar mandate, if you work you are to pay into it as a requirement and it pays for our care later on?

Mar. 26 2012 10:17 AM
bernie from bklyn

how would ms.greenhouse feel if roosevelt decided that, instead of our SS taxes going directly to the gov't, those taxes would go into a private hedge fund run by profiteers whose incentive is to make money for themselves and NOT to protect these funds for retiring seniors?

Mar. 26 2012 10:16 AM
Shawniqua C from Brooklyn

I know this guest is a partisan, but I buy my own insurance and I've noticed my premiums skyrocket after the passage of this law. It needs to go. Either single payer or just leave it alone. We cannot afford the costs this is going to put on us.

Mar. 26 2012 10:16 AM
Trish from nj

What would be the difference between an auto insurance and the affordable health care act?

Mar. 26 2012 10:15 AM
Sheldon from Brooklyn

I can't think of any other scenario where the federal govt forces its citizens, as a reason of breathing, to buy a private product.

As well meaning as Obama's intentions were - this mandate is just UnAmerican. There should have been a public option.

Mar. 26 2012 10:03 AM
Joe Mirsky from Pompton Lakes, NJ

All talking heads who opine on health insurance should be required to state what health insurance they have and what it costs them. What health insurance do the Supremes have and what does it cost?

Mar. 26 2012 10:01 AM
bernie from bklyn

agreed, greenhouse is a poor choice as guest for this segment. judging from her writing, she is a typical book-smart, reality-free liberal. opinions such as hers are best served for the poor who don't work and live a 100% entitlement lifestyle. study those stagnant statistics and draw your conclusions about their supposed oppression.
but requiring the working poor and working lower middle class to purchase insurance from a private insurance company is a betrayal of those who got obama elected, plain and simple.
single payer or a public option at the least, is the only way forward. otherwise don't bother. this gift, to an industry that profits from illness and whose financial incentives are based on providing the least amount of service at the highest price possible, is a travesty.
i, as a working class person, hope the court strikes this law down.
and ms. greenhouse- maybe you should not rush to judgement regarding those that want this law overturned. there's a huge class in this country that you obviously don't or can't understand. has she ever worked a day in her life? i mean work, real work like we all have to do every day to keep our heads barely above water and don't want or qualify for entitlements.

Mar. 26 2012 08:56 AM
Ed from Larchmont

Bravo, especially after the TakeAway's advertisement for the law.

Mar. 26 2012 07:55 AM
Martin Chuzzlewit from Manhattan

Brian- If you really MUST invite the ever partisan Greenhouse, who thankfully no longer poses as a "reporter", to discuss this case, at least be transparent enough to warn listeners that she now writes for the NYT as an opinionated editorialist.
Here she is in her NYT Online editorial of September 21, 2011.

"I have a confession to make. I can describe the legal arguments and the judicial conclusions, but on a fundamental level, I just don’t get the attack on the federal law. I don’t understand people who voluntarily, without claiming poverty, let their children go uninsured. I don’t understand the moral compass of the owner of the fancy car I saw the other day that sported the bumper sticker: “Repeal Obamacare.”

Really? She “doesn’t get” this “attack”? So I guess Greenhouse questions the “moral compass” of those nine justices who would even stoop to question the law’s legitimacy. Why is someone so unable to comprehend the other side of this issue even discussing this case here?

Mar. 26 2012 07:50 AM

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