The Supreme Court justices appear headed toward one of the more momentous decisions in the court’s long history based on the questions raised Tuesday during oral arguments on the individual health insurance mandate. For liberal members of the high court, a decision to strike down the mandate will set the nation on a path that could unravel many of the social programs of the 20th century, including Social Security and Medicare.
For conservative justices, compelling people to buy a product – in this case, health insurance – will give Congress an unlimited power to rule over individuals’ purchasing decisions, a usurpation of individual and states’ rights never contemplated by the framers of the constitution.
So on a court that is tilted 5-4 toward the conservative side, the final decision will likely come down to how Justice Anthony Kennedy votes. The Reagan appointee, whom long-time court observers say rarely tips his hand during questioning, expressed opinions at various points during the two-hour session that could put him on either side of the final decision.
Solicitor General Donald Verrilli Jr. provided the Obama administration’s stock defense of the need for the mandate. Everyone uses health care at sometime or other during their lives, he said, and when they don’t have insurance and can’t afford it out of pocket – an almost certainty when the uninsured are hit by an unexpected serious accident or contract a life-threatening illness – their extraordinarily high cost of care is passed along to all other insurance purchasers in the form of higher premiums.
He argued that gives Congress the right under the commerce clause to regulate the insurance market and require people to buy coverage or face a penalty. Those people without insurance are already in the interstate health care marketplace, whether they admit it or not, the government argued.
The challenge to the health care reform law by 26 states and the National Federation of Independent Business rests on argument that the commerce clause cannot compel people to buy anything. Congress can regulate pollution controls or mileage requirements on cars, attorneys Paul Clement for and Michael Carvin for NFIB noted in their most frequently cited example, but no one is forced to buy one.
Kennedy at first seemed sympathetic to the plaintiffs’ brief, suggesting during his questioning of Verrilli that the mandate violated the limited power of the federal government to impinge on individual or state sovereignty. “Can you create commerce in order to regulate it,” he asked at one point. “It violates an equally evident principle in the constitution that the federal government is not supposed to be a government of all powers, but a government of limited powers,” he stated at another.
But then, late in the session while questioning Carvin, he seemed sympathetic to the core economic arguments that undergird the Affordable Care Act, which requires that insurance be offered to all comers – guaranteed issue – at comparable age-adjusted rates – community rating. “Most matters in life are matters of degree,” he mused. “Young people are uniquely, proximately very close to the cost of providing medical care, which isn’t true in other industries.”
Of course, it’s never easy to predict how the Supreme Court will decide a case, especially one that will have a major impact on the next election. If politics governs the court’s decision, as it has at times when the country is deeply divided over contentious social and economic issues, the mandate will probably be struck down.
That heightens the stakes for Wednesday’s third and final day of oral arguments, when the justices will hear arguments over whether should the mandate fall, the rest of the insurance reforms in the law fall with it.
The issue is called severability, and most legal observers believe those reforms are well within Congress’ power to regulate commerce. But even here the plaintiffs sought to limit the federal government reach. When Justice Sonia Sotomayor cited Chief Justice John Marshall’s injunction that the government’s power to regulate “is complete in itself . . . and acknowledges no limitations other than those prescribed in the constitution,” Clement responded, “once you open the door . . . you’re not going to be able to stop this process.”
Reversing the numerous court decisions that back the large federal presence in American life clearly appeared to be a concern for liberals on the bench. Justice Ruth Bader Ginsburg, whose recent bouts with cancer appeared to have left no mark on her intellectual powers, likened the penalty attached to the individual mandate on health insurance to the requirement that people pay Social Security taxes during their working years, even though many people neither need the annuity upon retirement nor live long enough to collect it.
“Doesn’t that work the way Social Security works,” she asked. “Congress in the 30s saw a real problem in people needing to have old age and survivors insurance. They did it through a tax, and said everybody is going to be in it, because if we don’t have the healthy in it, we’re not going to have the money to pay for the ones who become old, or disabled.”
She then asked about what will likely be the step for liberal reformers should health care reform be struck down: pursuit of a single-payer health care system. “You need a group to subsidize” people who need health care, she told Clement. “You’re saying the only way that can be done is if the government does it itself. It has to be a government takeover. Is that your position?”
No, Clement replied. The government could raise the “amount of subsidy to the insurance industry (that) is needed to pay for community rating and guaranteed issue. Then we can levy a tax to pay for that subsidy.”