On second thought, maybe the government wouldn’t mind tabling the discussion on the constitutionality of Obamacare until 2015 after all.
Coming into today’s eagerly anticipated Supreme Court hearings, hopes were high within the Obama administration that the Court would bless the “individual insurance mandate” — requiring all Americans to procure health insurance starting in 2014 or risk being assessed a tax penalty — as constitutional, with some optimistically predicting that eight of the nine justices would support the law.
And while it’s never wise to predict the outcome of a case based on oral arguments, it’s safe to say that much of that optimism died today. After the justices took turns expressing skepticism — in some cases severe — regarding the law, even the biggest proponents of Obamacare must face the reality that, at best, the fate of the insurance mandate is going to come down to a 5-4 decision, and it doesn’t appear likely that it will go the president’s way.
While the goal of the day was to discuss whether the individual insurance mandate is constitutional or whether Congress overstepped its taxing authority by adding I.R.C. § 5000A to the Code, the first step towards making that determination was to answer the question: By requiring taxpayers to acquire health insurance or pay a penalty, is Congress regulating commerce, or creating it?
The distinction is critical, and it was a point belabored for much of the two-hour debate. The attorney for the government, Solicitor General Donald Verrilli, argued that Congress was merely regulating the existing health care marketplace within its rights under the Commerce Clause.
The health care market, Verilli posited, is a unique one, in the sense that even if a consumer isn’t in it, he’s in it, for two reasons:
First, every American, at some point or another, will need health care. He may not know when, he may not know to what extent, but he will get sick, and when he does, he’ll go to the doctor. So to Verilli’s point, by requiring everyone to have health insurance, the government is not forcing people to join a market they would otherwise avoid. Rather, they are merely regulating the already existing market, which happens to include all Americans, whether they know it or not.
Second, when we do show up at the doctor seeking care, we’ll get it, whether we’re insured or not. This affects the insurance market, because when setting the cost of policy premiums, insurance providers must take into consideration the cost of this uncompensated medical care for uninsured patients. They do so by raising the rates on those individuals who do have insurance.
So in summary, the young, healthy guy, who buoyed by a naïve sense of invincibility opts to spend his hard-earned money on fast cars and faster women rather than health insurance, is effectively punishing the insured by raising their health insurance costs.
As Verilli explained, Congress could remedy these problems by requiring all Americans to have health insurance or be denied treatment, but would prefer not to resort to such Draconian measures. As an alternative, Congress used its authority granted under the Commerce Clause to require that everyone procure insurance in advance, rather than at the moment they arrive at the doctor, sick and uninsured.
Compelling as this argument may be, the justices didn’t appear to be buying it.
They repeatedly attacked the individual insurance mandate as too broad, too invasive, and a potential Pandora’s box.
Chief Justice Roberts, challenging Verilli’s contention that the insurance market is unique:
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 is a market there. To — 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?
Justice Scalia, questioning the reach of Congress, and where it heads next:
The argument here is that this also is — may be necessary, but it’s not proper because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers. And that’s what all this questioning has been about. What — what is left? If the government can do this, what, what else can it not do?
Justice Kennedy, explaining that this country was built on the principle that its citizens can stand idly by while someone gets hit by a bus:
But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule. And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.
Chief Justice Roberts, echoing Scalia’s concerns:
And you’re worried — that’s the area that Congress has chosen to regulate. There’s this health care market. Everybody’s in it. So we can regulate it, and we’re going to look at a particular serious problem, which is how people pay for it. But next year, they can decide everybody’s in this market, we’re going to look at a different problem now, and this is how we’re going to regulate it. And we can compel people to do things — purchase insurance, in this case. Something else in the next case, because you’ve — we’ve accepted the argument that this is a market in which everybody participates.
Justice Alito, asking why the government doesn’t regulate burial services while it’s at it:
All right, suppose that you and I walked around downtown Washington at lunch hour and we found a couple of healthy young people and we stopped them and we said, “You know what you’re doing? You are financing your burial services right now because eventually you’re going to die, and somebody is going to have to pay for it, and if you don’t have burial insurance and you haven’t saved money for it, you’re going to shift the cost to somebody else.”
Trust me, this was but a taste of the overall tone of the day. Even Justice Sotomayor, an Obama appointee, got in on the act, questioning Congress’s ability to force people into commerce.
Unlike the Day 1 debate, it appears the constitutionality debate will ultimately be settled on partisan lines, with Justice’s Roberts, Scalia, Thomas and Alito – all conservative, Republican appointees — voting the individual insurance mandate unconstitutional. Assuming Justice’s Sotomayor, Ginsburg, Kager and Breyer — liberal Democrat appointees — vote to preserve the law, the fate of the individual insurance mandate may well rest in the hands of Justice Kenney. And judging by what we saw today, that’s not good news for President Obama.
Day 2 Supreme Court transcript
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