Yesterday the Supreme Court grilled Solicitor General Donald B. Verrilli Jr., former Solicitor General Paul D. Clement, and National Federation of Independent Businesses (NFIB) lawyer Michael A. Carvin. Verrilli represented the Obama administration via the Department of Health and Human Services, Clement represented the 26 states challenging the law, and Carvin represented the NFIB's challenge to the law.
The controversial individual mandate, which comprises all of nine pages in Section 1501 of the Patient Protection and Affordable Care Act (ACA), requires (beginning in 2014) every American to secure the minimum essential health insurance coverage, or they face a penalty. While the legal questions at play delve deeply into nuance, the basic point of controversy yesterday was whether this penalty violates the powers granted to Congress in the Commerce Clause. (The law professor most frequently cited as the generator of this critique was profiled yesterday morning in the New York Times.)
A New York Times/CBS News poll released recently indicates that 29 percent of adults want the individual mandate declared unconstitutional but would prefer to have the rest of the ACA operational. Yesterday's proceedings suggest the Court is not as big a fan.
Near the opening of Solicitor General Verrilli's argument, Justice Kennedy interjected, "Can you create commerce in order to regulate it?" Justice Kennedy's attitude is crucial, as many view him as the potential swing vote in this case should the decision come down to the ideological leanings on the bench. When the Solicitor General began to clarify that this is not the argument the government is using to defend the legislation, that health care insurance is an already established market in which nearly every American already participates, Justice Scalia interrupted to ask whether the "failure to purchase something in that market subjects [him] to regulation." Once again, Solicitor General Verrilli sought to clarify the precise position of the administration.
At this point Chief Justice John Roberts asked whether the government can require us all to buy cellphones because that would better facilitate the delivery of emergency services. When the Solicitor General disagreed that this hypothetical constituted a similar market, Chief Justice Roberts pushed back to claim he didn't see the difference. But what came as of the most concern to court watchers supportive of the ACA was Justice Kennedy's ominous statement that the federal government has a "heavy burden of justification" because the legislation changes the relationship of the individual to government.
Not all Justices were as skeptical. Justice Ginsburg challenged a claim that requiring Americans to buy health care is akin to requiring them to buy food with the observation that a refusal to purchase health care places a greater burden on those who do. When Justice Alito likened requisite healthcare purchase to requiring Americans to pre-emptively purchase burial services, Justice Breyer retorted that perhaps it wouldn't be so outlandish to require purchase of burial services if its market structure more closely resembled the architecture of health insurance.
When former Solicitor General Clement rose to the stand, his main line of argumentation alleged the ACA dangerously lacks a "limiting principle." Justice Sotomayor and Justice Kagan inquired when exactly the Commerce Clause violation is triggered, whether at the point of sale of health insurance or at some other point. Clement argued that the legal tradition is to regulate commerce at the point of sale, but the law in question goes awry in its move to regulate commerce before the point of sale by requiring the individual to purchase insurance.
In further questioning, Justice Ginsburg seemed to express skepticism that the individual mandate should be deemed unconstitutional if Social Security does the same thing. Then Justice Breyer took the Court through the legal history of the Commerce Clause to note that it was indeed used to create and regulate commerce when it created the national bank.
Arguments next came from Michael A. Carvin, who spoke on behalf of the NFIB. At the outset of his argument, Chief Justice Roberts, Justice Ginsburg, Justice Kagan, and Justice Breyer came down hard by interrupting with questions and disagreements. Justice Ginsburg asked Carvin the same question regarding the constitutionality of Social Security. Toward the end of the proceedings, Justice Kennedy appeared newly interested in whether the health insurance agency is sufficiently different from other industries in the manner in which costs unpaid by one group are foisted upon another.
The final arguments came in the form of a rebuttal from Solicitor General Verrilli, who seemed to be speaking directly to Justice Kennedy when he said getting rid of regulation at the point of purchase does nothing to address the grave problem of cost-shifting between those who don't buy insurance and those who bear the burden.
Today the Court will examine the question of severability, as well as other technical provisions in the ACA.
Rajiv Narayan is the Senior Fellow for Health Care Policy at the Roosevelt Institute | Campus Network and a graduating senior at the University of California, Davis.