Dylan Scott is a GOVERNING staff writer.E-mail: firstname.lastname@example.org
Can the federal government require individuals to purchase health insurance? The two-year debate finally came before the Supreme Court Tuesday during the second day of oral arguments on the Affordable Care Act (ACA).
In front of the court Tuesday morning, Solicitor General Donald Verrilli defended the individual mandate, while Paul Clement, attorney for the 26 states opposing the law, and Michael Carvin, attorney for the National Federation of Independent Businesses, attacked its constitutionality. The opponents’ argument asserted that the mandate is an overreach of Congress’s constitutional authority because it forces people to make a commercial decision that they otherwise wouldn’t.
Verrilli argued that the mandate is constitutional because of Congress’s authority under the Commerce Clause, which gives the legislature the power to regulate interstate commerce, and the Taxing and Spending Clause, which gives Congress the power to impose taxes. The Obama administration has claimed that the mandate (by widening the insurance risk pool) is necessary for other ACA market reforms to work.
An undercurrent of the justices’ questioning honed on the so-called “limiting principle”: if the mandate is constitutional, are there any limits to Congress’s power to compel commercial activity? The court also probed the question of whether the decision to not buy insurance qualifies as economic activity or inactivity. Verrilli argued the former; Clement and Carvin, the latter.
Widely seen as the most important swing vote on the court, Justice Anthony Kennedy probed both issues during Monday’s hearing. During Verrilli’s argument, Kennedy wondered if the federal government didn’t have a higher burden of proof to prove the mandate’s constitutionality because the mandate could “fundamentally change the relationship of the individual to the government” by forcing people to take an affirmative action when they purchase health insurance.
Verrilli’s response, which highlights the thrust of the administration’s position, was that the uninsured are already part of the health care market (because they receive uncompensated care and they are factored into the premiums of the insured) and therefore fall under Congress’s jurisdiction under the Commerce Clause.
Justices Antonin Scalia and Samuel Alito both expressed concern that this principle could then be applied to other markets, greatly increasing Congress’s power. Kennedy pushed Verrilli to define a limiting principle that would prevent an unconstitutional expansion of Congressional authority.
The Solicitor General asserted that the health-care market is unique because everyone will eventually become a part of it, either voluntarily or involuntarily. He also noted other cases that have set other limitations of the clause (such as in the case United States v. Lopez, which prohibited Congress from interfering with purely local economic decisions) that are not applicable to the individual mandate issue.
As expected, several justices appointed by Democrats (Stephen Breyer, Ruth Bader Ginsburg, Elena Kagen and Sonia Sotomayor) seemed supportive of the law in their interrogation of Clement and Carvin. However, many legal experts noted in the weeks leading up to the hearings that it can be notoriously difficult to discern a justice’s decision based on their line of questioning.
Kennedy also challenged the mandate’s opponents with the government’s theory that the uninsured create “a risk that the market must account for,” thus placing the decision not to purchase insurance within Congress’s purview under the Commerce Clause.
Carvin countered that this principle could then be applied to other markets: He gave the example of the automobile market, where the decision to not purchase a car could lead to layoffs, which then result in more people on welfare and food stamps, placing a larger burden on taxpayers.
Chief Justice John Roberts -- also perceived by some as a potential swing vote, although less so than Kennedy -- also prodded each side. He pushed Verrilli to explain the remaining limits on Congress’s constitutional power if the mandate is upheld, while forcing Clement and Carvin to defend their belief that the mandate forces individuals into commercial activity if they are already part of the market, as the government supposes.
The mandate is largely unpopular with the public: according to a recent Kaiser Family Foundation poll, nearly 70 percent of Americans disapprove of the mandate. More than half believe the court will find it unconstitutional. The mandate was struck down in the United States Northern Florida District Court last year, a decision that was upheld by the 11th Circuit Court of Appeals. The Obama administration then appealed those decisions to the Supreme Court.
The court has several options in its decision, which is expected in June. It could: uphold the mandate; strike down the mandate but uphold the rest of the ACA; strike down the mandate and other pieces of the law; or strike down the mandate and the entire law.
The first portion of Wednesday’s arguments will focus on whether the mandate is “severable” from the remainder of the ACA (which would determine if the rest of the law could stand without the mandate).
Below are transcript and audio of Tuesday's hearing.