Insurance Mandate in Doubt After High Court Session

By Kenneth Jost
Supreme Court Editor, CQ Press
      Supreme Court justices divided along familiar liberal-conservative lines Tuesday in a spirited two hours of argument that left the constitutionality of the individual insurance mandate provision in President Obama’s health care law seriously in doubt.
      Seeking to uphold the law, Solicitor General Donald Verrilli faced pointed questioning from all four of the conservative justices who participate in oral argument. From their questions, the four appeared to embrace the arguments that Congress exceeded its power in requiring virtually everyone to buy health insurance or pay a penalty.
      As is his custom, Justice Clarence Thomas asked no questions, but court watchers universally agree that he is a certain vote for rejecting what opponents call the individual mandate and what the administration labels the “minimum coverage” provision.
      On the opposite side, the four liberal justices appeared equally certain votes for upholding the law based on the critical questions they put to the lawyers representing the law’s challengers: 26 states led by Florida and the National Federation of Independent Business (NFIB).
      By the end of the expanded two-hour session, the administration’s chances to uphold the law as written appeared to depend on Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy. Both directed some questions to challengers indicating some openness to the administration’s arguments that the individual mandate was a necessary complement to insurance industry reforms acknowledged to be within Congress’s power to enact.
      The session played to a capacity courtroom crowd that included key members of Congress from both parties. Outside, for the second day in a row, hundreds of placard-carrying demonstrators representing both sides of the debate turned the sidewalks in front of the Supreme Court building into a raucous free-speech zone.
      The scene is expected to be much the same on Wednesday for the third and final day of arguments in the three consolidated cases challenging the law. On tap in the morning are arguments whether other parts of the Affordable Care Act can stand if the individual mandate is struck down. In the afternoon the court will hear the states’ effort to strike down as financially burdensome the act’s expansion of Medicaid coverage for the near-poor.
      Verrilli opened his allotted 60 minutes by stressing the act’s goal of bringing affordable health insurance to the 40 million Americans currently uninsured. Most Americans get health insurance through their employers or through government programs such as Medicare or Medicaid, he told the justices. But for others, “the market does not provide affordable health care,” he said, in part because the uninsured receive “many billions of dollars” in health care that are paid through higher premiums for everyone else.
      Conservative justices took up arguments from the challengers that Congress exceeded its power to regulate commerce in forcing individuals into the insurance market. “Can you create commerce in order to regulate it?” Kennedy asked early on. Later, Roberts and Justice Samuel A. Alito Jr. both suggested that upholding the law could allow Congress to require everyone to buy burial insurance (Alito) or cell phones (Roberts).
      Justice Antonin Scalia similarly saw the government’s position as open-ended. He challenged Verrilli to define a “principled basis” for limiting the argument to avoid going beyond “what the system of enumerated powers allows the government to do.” Verrilli got help in answering from liberal Justice Ruth Bader Ginsburg, who echoed his description of the health care market as “unique.”
      “It's not my choice whether I want to buy a product to keep me healthy,” Ginsburg said, “but the cost that I am forcing on other people if I don't buy the product sooner rather than later.”
      Representing the states, Paul Clement, who served as solicitor general under President George W. Bush, opened his allotted 30 minutes by depicting the individual mandate as “unprecedented” and the theory for upholding it as “lacking any limiting principle.”
      “The Commerce Clause gives Congress the power to regulate existing commerce,” Clement said. “It does not give Congress the far greater power to compel people to enter commerce to create commerce essentially in the first place.”
      Ginsburg and the other liberal justices — Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — challenged both Clement and the NFIB’s lawyer, former Reagan administration official Michael Carvin, by echoing Verrilli’s view of the economics of the health care market.
      “The theory behind this law,” Kagan said, “is that people are in this market right now, and they are in this market because people do get sick, and because when people get sick, we provide them with care without making them pay.”
      Both Sotomayor and Kagan wrung concessions from Clement and Carvin that the government could require proof of insurance when someone shows up at a hospital or doctor’s office for medical care. “It seems as though you’re just talking about timing,” Kagan said.
      Twice, Ginsburg likened the challenged provision to Social Security, a mandatory retirement insurance program enacted in the 1930s in the face of constitutional challenges but now widely accepted. If Congress could create a mandatory government-run insurance program, she asked Clement, why could it not accomplish the same thing through the private market?
      Clement answered by suggesting that Congress could instead provide a tax subsidy to insurers to cover the cost of uncompensated care. But both he and Carvin returned repeatedly to their main point of objecting to forcing people into the health insurance market. “If Congress has the power to compel you to buy this product,” Carvin said as he wrapped up, “then obviously, they have got the power to compel you to buy any product.”
      Verrilli got an uninterrupted four minutes for rebuttal that he used to urge the justices to defer to Congress on how best to solve what he called the “grave problem” of providing affordable health care to the insured. Requiring insurance at the time of medical care, he said, was “utterly unrealistic.” The decision to require insurance in advance, he said, was “exactly the kind of thing that ought to be left to the judgment of Congress and the democratically accountable branches of government.”