There are several provisions in the Affordable Care Act that are generally praised by the American public: 2.5 million 19-26 year olds are now covered under their parents’ health insurance, children cannot be denied health insurance coverage due to pre-existing conditions, and shrinking the prescription “donut hole” for seniors on Medicare; however, the federal individual mandate that all American must purchase health insurance before January 1, 2014 is not one of those beloved provisions.
Tuesday’s Supreme Court health care hearings focused entirely on the constitutionality of the individual mandate. As expected, Tuesday’s hearing was contentious.
The justices focused on their attention on the issue of whether the individual mandate violates the Commerce Clause of Article 1 Section 8 of the Constitution.
Tuesday’s hearing began with a barrage of questions from moderate justice Anthony M. Kennedy, the Court’s most frequent swing justice, and Chief Justice John Roberts. Both justices (whose votes will likely determine the court’s decision) expressed their discomfort with the lack of constitutional specificity regarding the individual mandate. In the hearing’s first minutes, Justice Kennedy interrupted Solicitor General Donald B. Vermilli Jr. by asking, “Can you create commerce in order to regulate it?
Chief Justice Roberts followed with, “Well, the same, it seems to me, would be true, say, for the market in emergency services: police, fire, ambulance, roadside assistance, whatever. You don’t know when you’re going to need it; you’re not sure that you will. But the same is true for health care. You don’t know if you’re going to need a heart transplant or if you ever will. So, there’s a market there. In some extent, we all participate in it. So, can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? You can just dial 911 no matter where you are?”
From that point on, the Solicitor General was peppered with questions from normally liberal Justice Stephen G. Breyer and conspicuously conservative Justice Samuel A. Alito Jr. regarding various analogies of other types of commerce ranging from cell phone use to funeral insurance to the choice about whether or not to purchase broccoli at the supermarket.
“Do you think there is a market for burial services?” asked Justice Alito.
When General Verrilli said that he thought there was, Justice Alito launched into a lengthy analogy involving stopping young people in Washington DC and asking them if they were financing their burial services right now because eventually they’re going to die, and somebody is going to have to pay for it, and if they don’t have burial insurance and they haven’t saved money for it, they’re going to shift the cost to somebody else.
Justice Alito went on to say that he did not see the difference between burial insurance and health insurance. “Most people are going to need health care, almost everybody. Everybody is going to be buried or cremated at some point.”
Although General Verrilli replied that the difference was “you don’t have the cost shifting to other market participants.” His argument, at least with Justice Alito, did not fall on favorable ears.
When Justice Kennedy raised the objection that billions of uncompensated costs would be transferred directly to other market participants, Justice Ruth Bader Ginsburgcame to Verrilli’s aid when she interjected, “If you’re going to have insurance, that’s how insurance works.”
Justice Kennedy countered by saying, “I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?”
Even though Verrilli countered with some persuasive statistics concerning use of health care in the United States (83 percent visit a physician every year; 96 percent over a five year period), the barrage of analogies continued unabated.
Justice Antonin Scalia asked General Verrilli to define the market by saying, “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.”
In the second half of the hearing, the Court’s liberal justices: Ginsburg, Breyer, Sotomayor and Kagen expressed their support for the individual mandate with equal zeal in their questions for Mr. Paul D. Clement, representing the 26 states in the case, Department of Health and Human Services v. Florida.
When Mr. Clement tried to define the health insurance market, Justice ElenaKagen interjected, “I mean, health insurance exists only for the purpose of financing health care. The two are inextricably interlinked. We don’t get insurance so that we can stare at our insurance certificate. We get it so that we can go and access health care.”
Mr. Clement summed up his argument by stating, “The question that’s a proper question for this court, though, is whether or not, for the first time ever in our history, Congress also has the power to compel people into commerce, because, it turns out, that would be a very efficient things for purposes of Congress’s optimal regulation of that market.”
In other words, the crux of the argument against the individual mandate revolves around the question: Can congress force the American people into a particular type of commerce (the mandatory purchasing health insurance) for the purpose of regulating the health insurance market?
The exchange between Clement and the liberal justices grew even testier than those between Justice Alito and Verrilli, to the point where Justice Sotomayor asked Clement point blank, “Do you think the States could pass this mandate?”
Clement’s answer, although as equally hypothetical as Justice Sonia Sotomayor’s question, comes back to the heart of the matter: Does the federal government have the constitutional right to enforce such a mandate, or would it be better to allow individual states to come up with their own health insurance mandates like Massachusetts has?
Wednesday’s morning sessions focus on the “severability” of the individual mandate, and the afternoon session concerns the ACA’s extension of Medicare and whether it is legal for the federal government to require that states pay 10 percent of the expanded coverage—or lose all their federal Medicare assistance.
About the author: Mark Saunders is Bartlett’s publisher and editor. He has written hundreds of articles for dozens of newspapers and magazines including The Denver Post and Water Efficiency magazine—focusing on sports, fitness, and water issues. In addition, he has also been the editor in chief of VeloPress and sports editor of the Colorado Daily newspaper. For the past 14 years, he has been teaching journalism & creative writing.