Today was the day that the Supreme Court of the United States heard oral argument about the “individual mandate.” That is the provision that requires everyone to have health insurance.
The United States argued first, and the Chief Justice and Justices Scalia, Alito and Kennedy immediately assailed the Solicitor General’s argument, which was that health care is a unique market. It is a service that everyone will eventually need, and a market that cannot function properly if people do not have to have health insurance until they become sick. Justice Alito asserted that burial services are a similar market, while Justice Scalia raised the Tea Party talking point that if citizens can be required to have health insurance, they can be required to eat broccoli. Some had believed that Justice Scalia, who in the past has voted to uphold expansive federal powers, as in Gonzalez v. Raich, might be a vote to uphold the individual mandate. However, Justice Scalia made very clear early on that he was not so disposed.
In response to Justice Alito’s request that he state the “limiting rule” that would sustain the affordable mandate, the Solicitor General offered two ideas. First, when Congress is enacting a “comprehensive scheme that it has the authority to enact, that the Necessary and Proper Clause gives it the authority to include regulation, including a regulation of this kind, if it is necessary to counteract risks attributable to the scheme itself– that people engage in economic activity that would undercut the scheme.” Second, with reference to the Commerce Clause only, “Congress can regulate the method of payment by imposing an insurance requirement in advance of the time in which the service is consumed when the class to which the requirement applies either is or [is] virtually most certain to be in that market” at some time.
The Solicitor General then turned to the issue of whether the required payment for failing to obtain health insurance is a “tax” or a “penalty.” This has always been one of the weakest arguments in support of the Affordable Care Act. Even Justice Ginsburg expressed skepticism about it, noting that the purpose of the payment is to induce compliance, not ot raise revenue. Justice Scalia was quick to note that President Obama himself had said that the payment was not a tax. It does not appear, from the tenor of the oral argument, that this contention gained much traction.
Unsurprisingly, other Justices seemed skeptical of the arguments of the opponents of the Affordable Care Act. When their counsel distinguished mandatory auto insurance as something the states could impose but the federal government could not, Justice Sotomayor asked whether that was a “Lochner-era” argument (referring to the discredited line of cases embodied in the early 1900’s case of Lochner v. New York). Justices Breyer, Kagan and Ginsburg also seemed potentially supportive of the individual mandate. Even Chief Justice Roberts and Justice Kennedy asked a question or two that might give comfort to the mandate’s supporters. At one point, Justice Scalia jumped in and responded to a hypothetical that Justice Breyer posed, causing Justice Breyer to alter the hypothetical “under pressure,” to some laughter.
As he normally does, Justice Thomas said nothing during the argument. It is generally assumed that he is a vote against the Affordable Care Act, a belief that I share.
Justice Breyer cited to one of the opponents of the statute the concurring opinion of Judge Jeffrey Sutton in the Sixth Circuit Court of Appeals in one of the cases now before the Court. Judge Sutton is what Mitt Romney might call a “severe conservative” (others might say merely that he holds generally conservative views). Judge Sutton wrote what is probably the most persuasive opinion of any of the numerous judges who have opined in these cases. He was willing to deviate from his general political views to reach the constitutionally correct result.
In my view, the right result is to uphold the mandate. The federal government unquestionably has the right to, and does, regulate both health care and health insurance. Everyone will be in the health care market at some time, and each of us pays, directly or indirectly, for everyone who is uninsured, a state of affairs that itself constitutes interstate commerce in an indivisible national market. Congress has the right to regulate by requiring everyone to have health insurance in order to allow that market to function. Nothing in such a ruling opens the door to mandatory broccoli consumption.
At least at the moment, however, it appears that the Supreme Court majority may be inclined to void the mandate. What will happen when the Court actually deliberates remains to be seen.