Obamacare, Day 2

Today the Supreme Court heard two hours of oral argument dealing with the constitutionality of Obamacare’s mandate that all persons (with limited exceptions) purchase “qualified” health insurance or pay a penalty.  You can listen to the audio tapes of this argument here, and read a transcript of the arguments here.

After listening, about the only thing I can say with certainty is that if the mandate is found to be constitutional it will not be so based upon Congress’ power to tax.  As to constututionality based upon Congress’ power to regulate interstate commerce, I can honestly say I have no idea.

Since everyone believes that Justice Kennedy will be the swing vote, I thought it might be helpful to provide you with the substance of the questions he asked.  What follows are his questions during the oral argument of the Solicitor General:

JUSTICE KENNEDY: Can you create commerce in order to regulate it? [See page 4-5 of the transcript];

JUSTICE KENNEDY: Could you help — help me with this. Assume for the moment — you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?

I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution? [See page 11];

JUSTICE KENNEDY: Well, then your question is whether or not there are any limits on the Commerce Clause. Can you identify for us some limits on the Commerce Clause? [See page 16];

JUSTICE KENNEDY: I’m not sure which way it cuts. If the Congress has alternate means, let’s assume it can use the tax power to raise revenue and to just have a national health service, single payer. How does that factor into our analysis? In the one sense, it can be argued that this is what the government is doing; it ought to be honest about the power that it’s using and use the correct power. On the other hand, it means that since the Court can do it anyway — Congress can do it anyway, we give a certain amount of latitude. I’m not sure which the way the argument goes. [See page 24];

JUSTICE KENNEDY: But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger…

And here the government is saying that the Federal Government has a duty to tell 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 the very fundamental way. [See page 30].

And, this question was asked during the argument by the attorney representing the states:

JUSTICE KENNEDY: Was the government’s argument this — and maybe I won’t state it accurately — it is true that the noninsured young adult is, in fact, an actuarial reality insofar as our allocation of health services, insofar as the way healthinsurance companies figure risks?

That person who is sitting at home in his or her living room doing nothing is an actuarial reality that can and must be measured for health service purposes; is that their argument? [See page 55-56]

And finally, this question during the argument of the attorney representing the private individuals:

JUSTICE KENNEDY: And the government tells us that’s because the insurance market is unique. And in the next case, it’ll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. [See page 103]

And, if your eyes are not glazing over yet, here is a question I thought interesting from Chief Justice Roberts during the argument of the Solicitor General:

CHIEF JUSTICE ROBERTS: Well, but it’s critical how you define the market. If I understand the law, the policies that you’re requiring people to purchase involve — must contain provision for maternity and newborn care, pediatric services, and substance use treatment. It seems to me that you cannot say that everybody is going to need substance use treatment, substance use treatment or pediatric services, and yet that is part of what you require them to purchase… 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. [See page 31]

If you are interested in learning more about this topic, you can find a link here to all of the briefs filed in the Supreme Court on this issue.