Stephen Reader covers politics for It's a Free Country, WNYC's interactive politics site. He joined the station in 2010 and has also worked for Studio 360, WNYC's Peabody Award-winning show about art, culture, and creativity.
On the second day of oral arguments on the constitutionality of the Affordable Care Act’s individual mandate to purchase health insurance, the Supreme Court weighed the federal government’s argument that health care is different from all other products.
The central challenge to the mandate raised by Paul Clement, the lawyer representing Florida and 25 other states, is that if the government could force citizens to purchase health insurance, then it could force individuals to purchase anything.
“The power to compel a person to enter into an unwanted commercial relationship is not some modest step necessary and proper to perfect Congress’ authority to regulate existing commercial intercourse,” Clement wrote in his brief to the Court. “It is a revolution in the relationship between the central government and the governed.”
Donald Verrilli, Solicitor General arguing on behalf of the federal government, defends the mandate by citing two provisions of the U.S. Consitution: Congress’ power to collect taxes, and its ability to regulate interstate commerce.
Yesterday, Verrilli argued that the fees incurred for failing to purchase insurance didn’t constitute a “tax”; rather, they constituted a “penalty.” But today, Verrilli had to argue that the mandate was constitutional, in part, because those penalties were collected in the same manner as taxes, and therefore were within Congress’ authority to levy.
The other part of Verrilli’s argument addresses Clement’s challenge more specifically: Congress has the authority to regulate interstate commerce, and can force people to purchase health insurance in the name of regulating such commerce. Clement argues that giving Congress the power to force people to enter into a market, in this case by purchasing insurance, is a power both unprecedented and un-enumerated.
On the other hand, the government says that it’s not forcing anyone into a market: every American is already in the health care market, whether they purchase insurance or not.
“Individuals without insurance actively participate in the health care market, but they pay only a fraction of the cost of the services they consume,” Verrilli writes in his argument summary. “These costs are shifted to other market participants, raising the average family’s annual health insurance premiums by more than $1,000.”
The uninsured “externalize the risks and costs” of their health care; the individual mandate “will require that they internalize them,” he argues. “This is classic economic regulation of an economic conduct.”
On Tuesday, the Court was most interested in determining whether upholding the mandate would set a precedent for Congress to force citizens to purchase other products in the future.
The federal government argues that health care is different from any other product, and requiring people to purchase health insurance would not open the door for Congress to require the purchase of other goods and services.
Over more than two hours this morning, Supreme Court Justices compared health insurance to food, car insurance, fire and police services, funeral insurance, cell phones, and gym membership. Might the government find reasons to compel the purchase of these products at some future date if the individual mandate were upheld?
Justices John Roberts, Samuel Alito, and Anthony Kennedy were the most active in pursuing these comparisons. Justice Alito asked specifically if the government couldn’t mandate the purchase of funeral insurance – everyone will eventually use health care, the government argues, but won’t everyone also eventually die?
Verrilli countered that in this example, the cost burdens of a funeral aren’t shifted on to others, the way health care costs are.
Both Paul Clement and Michael Carvin, an attorney representing the National Federation of Independent Business and several other individuals challenging the mandate, disagreed that health care was unique enough for there to be a practical “limiting principle” that would prevent the government from mandating other purchases in the future.
Earlier in the proceedings, Justice Alito had asked Mr. Verrilli to express his limiting principle "as succinctly as you possibly can.” Verrilli made three points for why health insurance was unique: it’s virtually certain every American will need it, and impossible to predict when; citizens receive care even if they can’t afford it; and to not require insurance would be to allow cost-shifting that distorts the market, which makes up more than 17 percent of the national economy.
Michael Carvin, arguing against the law, called this limiting principle “bogus.” Carvin echoed Clement, who said earlier in the proceedings that the government’s justification had no limiting principles.
It’s a matter that the case is likely to turn on, and at least one legal expert thinks the odds favor the opponents of the mandate.
CNN legal analyst Jeffrey Toobin told the network that he believed Solicitor General Verrilli’s performance was “a train wreck for the Obama administration.”
“He was not ready for the answers for the conservative justices,” Toobin said.
Verrilli would have to win over the four liberal Supreme Court Justices, as well as swing-voter Anthony Kennedy, presumably. As of Tuesday afternoon, Toobin said he thought Kennedy was a “lost cause.”