ACA On Trial Part IV: The Individual Mandate

Day Two of Supreme Court Arguments
       by Christina Sochacki R.N., J.D.

[As published at CAHC.net, here]

And now, for the main event. For two hours today, oral arguments were heard on the most anticipated question – Is the “minimum coverage” provision of the act a valid regulation of the health insurance market, or an unconstitutional burden on a person’s choice to not buy insurance.



The individual mandate, or “minimum coverage provision,” is the heart of the controversy over the Affordable Care Act (ACA). The provision requires Americans to buy health insurance by 2014, or face a penalty. The challengers to the law (26 states, four individuals and the Nation Federation of Independent Business) are suing the Administration, arguing that the Federal government cannot force citizens to buy a product or enter into an unwanted commercial relationship.

Rundown of Oral Arguments - Minimum Coverage Provision

The Administration relied on the Commerce Clause of the Constitution to demonstrate Congress’ authority to enact the individual mandate. The clause says in part, “the Congress shall have power…to regulate commerce … among the several states.” Congress’ power to regulate “among the several states” is considered Congress’ power to regulate “interstate commerce”. In other words, Congress can regulate economic activity with a substantial effect on interstate commerce.

General Verrilli, the lawyer for the Administration, argued that “what is being regulated is the method of financing health, the purchase of health care.” He contends that this is, itself, economic activity with substantial effects on interstate commerce. Justice Scalia disagreed, stating that “[y]ou’re not regulating health care. You’re regulating insurance. It’s the insurance market that you’re addressing and you’re saying that some people who are not in it must be in it … .”

Critics of the health care law argue that Congress’ power to regulate interstate commerce does not include the power to compel people into a marketplace and force them to buy a product. They draw a distinction between the unconstitutionality of being forced to participate in interstate commerce and the generally acceptable regulation of voluntary participation in a market.

Justice Kennedy saw this forced participation in the health insurance market as a requirement to do an affirmative act which “changes the relationship of the Federal Government to the individual in a very fundamental way.”

The Administration argued that every American is already part of the interstate market for health care because everyone will use it at some point in their life – the mandate requires people to get coverage to pay for treatment they’ll eventually need. Justice Roberts countered by saying that the law’s benefit mandates would “require people who are never going to need pediatric or maternity services to participate in that market.”

Additional justices responded, asking whether “the government [can go so far as to] require you to buy a cell phone because that would facilitate responding when you need emergency services.” Concerns were raised about the extension of the Administration’s theory to requiring the purchase of certain food or burial insurance, because each of us uses these products or services at some point in our life.

Mr. Clement, the first attorney for the challengers of the law, argued that Americans who fail to buy insurance can’t be regulated because they aren’t engaged in commerce. Mr. Clement, echoed several Justices’ fears that a ruling in favor of the individual mandate would mean Congress could force consumers to buy any product for the sake of stimulating the economy.

Mr. Carvin, the second attorney for the challengers of the law, noted that “the people who do result in uncompensated care, the free riders … [t]hose are people who default on their health care payments. That is an entirely different group of people, an entirely different activity than being uninsured.” Mr. Carvin argued that the Constitution does not allow Congress to regulate an activity because it has a statistical connection to another activity that produces societal ills. “[T]he Constitution only gives Congress the power to regulate things that negatively affect commerce or commerce regulation. It doesn’t give them the power to regulate things that are statistically connected to things that negatively affect the commerce.”

What is at stake in the main event is a requirement to purchase coverage that may not be affordable, with or without subsidies. A key flaw of the ACA is that it makes coverage more expensive, then socializes the cost through public subsidies to make it less expensive. There are better solutions than the ACA’s mandate and subsidy contortions.

The Call

During the first hour of oral arguments, there was a sense that a majority of Justices opposed the individual mandate. However, by the end of the two hours, there was no clear call as to how the Justices might rule in June.

Tomorrow, the last day of oral arguments, the justices will consider the issue of severability – what should happen to the rest of the law if the individual mandate is invalidated. During the afternoon, the court will listen to arguments concerning whether the law, by expanding the Medicaid program, unconstitutionally coerces states into accepting the new conditions.


---------
Today’s oral arguments audio and transcript can be found here.

For further reference read Parts I, II, III, IV, & V of the ACA on Trial Series

ACA on Trial Part I: An Overview

ACA on Trial Part II: Possible Outcomes

ACA On Trial Part III: Tax or Penalty?

ACA On Trial Part IV: The Individual Mandate

ACA On Trial Part V: Severability and to What Extent