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Yesterday, the Supreme Court heard two hours of oral argument on the constitutional issue that lies at the heart of the Affordable Care Act ("ACA") cases: Does the federal government have the power to require citizens to maintain health insurance?
Donald B. Verrilli, Jr., the Solicitor General of the United States, argued that Congress holds the power to enact this "individual mandate" under three different clauses of the Constitution – the Commerce Clause, the Necessary and Proper Clause, and the Taxing Clause. Focusing on the Commerce Clause, he emphasized "the unique nature of this market, because this is a market in which ... most of the population is in the market most of the time–83 percent visit a physician every year; 96 percent over a five-year period." "There is no temporal limitation in the Commerce Clause," he argued, and "[e]veryone subject to [the individual mandate] is in or will be in the health care market. They are just being regulated in advance. That's exactly the kind of thing that ought to be left to the judgment of Congress and the democratically accountable branches of government."
Several Justices echoed the United States' arguments in their questions. Justice Kagan noted that people who do not purchase insurance "are in commerce. They are making decisions that are affecting the price that everybody pays for this service." Justice Sotomayor commented, "Virtually everyone will use health care." Justice Ginsburg declared, "I thought a major, major point of your argument was that the people who don't participate in this market are making it much more expensive for the people who do." To which General Verrilli quickly agreed, "That absolutely is a justification for Congress's action here. That is existing economic activity that Congress is regulating by means of this rule."
On the other side of the argument, Paul D. Clement, representing a coalition of 26 states, and Michael A. Carvin, representing the National Federation of Independent Businesses, argued that the individual mandate is different from any previous law upheld by the Supreme Court because it forces people to engage in commerce, and although "the Commerce Clause gives Congress the power to regulate existing commerce," it "does not give Congress the far greater power to compel people to enter commerce." As Mr. Clement put it, "With respect to the health insurance market that's designed to have payment in the health care market, everybody is not in the market. And that's the premise of the statute, and that's the problem Congress is trying to solve. And if it tried to solve it through incentives, we wouldn't be here; but, it's trying to solve it in a way that nobody has ever tried to solve an economic problem before, which is saying, you know, it would be so much more efficient if you were just in this market."
Several justices echoed Mr. Clement's arguments in their questions. Chief Justice Roberts asked General Verrilli, "But your theory is that there is a market in which everyone participates because everybody might need a certain range of health care services, and yet you're requiring people who are not–never going to need pediatric or maternity services to participate in that market." The holder of perhaps the deciding vote on the issue, Justice Kennedy, similarly declared, "Here the government is ... tell[ing] 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 a very fundamental way."
Nearly every Justice struggled with the question of the scope of federal power. If Congress has the power to require individuals to purchase health insurance, are there any practical limits on what else it can compel individuals to do? The challengers argued that if this law passes muster, then there is essentially no limit to what the federal government can compel an individual to do. They argue that is inconsistent with basic notions of individual liberty and the structure of our constitution, which creates a federal government of limited powers. The United States countered that upholding this law does not mean there are no limits on federal power, because the market for health care is fundamentally different from any other market. There is near-universal participation in the health care market, and significant cost-shifting takes place as a result of the requirement that medical care be provided even to those who cannot pay.
It is impossible at this point to predict with any confidence how the Court will rule. The justices were very active in their questioning (except for Justice Thomas, who is well-known for not asking questions). The tenor of the questions suggests that in all likelihood the Court will split on the constitutionality of the individual mandate, with Justice Kennedy perhaps holding the deciding vote.
For those who want to follow the arguments in greater detail, the audio recording and written transcript of the arguments are available on the Supreme Court's website.
Today the Court hears oral argument on two remaining issues under the ACA. The morning session concerns the issue of severability–that is, if the Court strikes down the individual mandate, does the entire ACA fall with it or can some or all of the rest of the law stand? The Court has allotted 90 minutes of argument to that issue, commencing at 10 a.m. EDT. In the afternoon session, the Court will hear argument on whether the expansion of Medicaid under the ACA violates state sovereignty. That argument starts at 1 p.m. EDT, and the Court has allotted 60 minutes.
