The Courtroom of the Supreme Court (Franz Jantzen)
following the first three-quarters of this morning's oral argument on the Minimum Coverage (i.e., "individual mandate") provision of the Affordable Care Act—Jeffrey Toobin
tweeted that it was a "train wreck"—and after reading
this morning's transcript I reluctantly agree.
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?
First, one caveat: Justices ask questions for all sorts of reasons. They may be trying to persuade their colleagues; they may be playing devil's advocate to sharpen the opinions they're trying to write; and, yes, they may have honest questions. But I see almost nothing in today's transcript that gives me any confidence that a fifth vote exists to preserve the individual mandate—and if that goes, then the Guaranteed Issue provisions will fall as well.
JUSTICE SCALIA: The argument here is that this also is -- may be necessary, but it's not proper because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it's supposed to be a government of limited powers. And that's what all this questioning has been about. What -- what is left? If the government can do this, what, what else can it not do?
And one piece of encouragement:
This morning's transcript is not tied up in impenetrable legalese; it's quite lucid. Don't be afraid of it. Read it yourself.
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. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that's generally the rule.
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.
What I've done below is set out sections from today's argument which I think give insights into the four questioning conservative Justices' thinking; the four moderate-liberals on the Court seem to be sure votes to uphold the individual mandate. I did use "almost" as an adverb above, so I'll start with the one clause that gives me some hope that the Chief Justice
may be favorably inclined, and a nibble from Justice Scalia at the end of the pro-mandate argument that's prone to multiple interpretations.
(Continue reading below the fold)
This section comes towards the end of Solicitor General Donald Verrilli's defense of the ACA. Pay careful attention to what I've bolded:
JUSTICE SCALIA: Can -- can I tell you what the something else is so -- while you're answering it? The something else is everybody has to exercise, because there's no doubt that lack of exercise cause -- causes illness, and that causes health care costs to go up.
So the Federal government says everybody has to -- to join a -- an exercise club. That's -- that's the something else.
GENERAL VERRILLI: No. The -- the position we're taking here would not justify that rule, Justice Scalia, because health club membership is not a means of payment for -- for consumption of anything in -- in a market.
CHIEF JUSTICE ROBERTS: Right. Right. That's -- that's exactly right, but it doesn't seem responsive to my concern that there's no reason -- once we say this is within Congress's commerce power, there's no reason other than our own arbitrary judgment to say all they can regulate is the method of payment. They can regulate other things that affect this now-conceded interstate market in health care in which everybody participates.
GENERAL VERRILLI: But I think it's common ground between us and the Respondents that this is an interstate market in which everybody participates. And they agree that -- that Congress could impose the insurance requirement at the point of sale. And this is just a question of timing, and whether Congress's -whether the necessary and proper authority gives Congress, because of the particular features of this market, the ability to impose the -- the insurance, the need for insurance, the maintenance of insurance before you show up to get health care rather than at the moment you get up to show -
CHIEF JUSTICE ROBERTS: Right. No, I think -
GENERAL VERRILLI: -- show up to get health care. And that -
CHIEF JUSTICE ROBERTS: -- unless I'm missing something, I think you're just repeating the idea that this is the regulation of the method of payment. And I understand that argument. And it may be -- it may be a good one. But what I'm concerned about is, once we accept the principle that everybody is in this market, I don't see why Congress's power is limited to regulating the method of payment and doesn't include as it does in any other area.
What other area have we said Congress can regulate this market but only with respect to prices, but only with respect to means of travel? No. Once you're -- once you're in the interstate commerce and can regulate it, pretty much all bets are off.
GENERAL VERRILLI: But we agree Congress can regulate this market. ERISA regulates this market. HIPAA regulates this market. The -- the market is regulated at the Federal level in very significant ways already. So I don't think that's the question, Mr. Chief Justice. The question is, is there a limit to the authority that we're advocating here under the commerce power, and the answer is yes, because we are not advocating for a power that would allow Congress to compel purchases...
And Justice Scalia, at the end of Verrilli's argument, tags onto an argument about whether the mandate (a) is under Congress' power to tax but (b) isn't itself a tax, and whether that
may provide an avenue to save it:
JUSTICE SCALIA: You're saying that all the discussion we had earlier about how this is one big uniform scheme and the Commerce Clause blah, blah, blah, it really doesn't matter. This is a tax and the Federal Government could simply have said, without all of the rest of this legislation, could simply have said everybody who doesn't buy health insurance at a certain age will be taxed so much money, right?
GENERAL VERRILLI: It -- it used its powers together to solve the problem of the market not -
JUSTICE SCALIA: Yes, but you didn't need that.
GENERAL VERRILLI -- providing for the -
JUSTICE SCALIA: You didn't need that. If it's a tax, it's only -- raising money is enough.
GENERAL VERRILLI: It's justifiable under its tax power.
JUSTICE SCALIA: Extraordinary.
But otherwise, the Chief Justice,
eesh:
CHIEF JUSTICE ROBERTS: Is your argument limited to insurance or means of paying for health care?
GENERAL VERRILLI: Yes. It's limited to insurance.
CHIEF JUSTICE ROBERTS: Well, now why is that? Congress could -- once you -- once you establish that you have a market for health care, I would suppose Congress's power under the Commerce Clause meant they had a broad scope in terms of how they regulate that market. And it would be -- it would be going back to Lochner if we were put in the position of saying no, you can use your commerce power to regulate insurance, but you can't use your commerce power to regulate this market in other ways. I think that would be a very significant intrusion by the Court into Congress's power.
So I don't see how we can accept your -it's good for you in this case to say oh, it's just insurance. But once we say that there is a market and Congress can require people to participate in it, as some would say -- or as you would say, that people are already participating in it -- it seems to me that we can't say there are limitations on what Congress can do under its commerce power, just like in any other area, all -- given significant deference that we accord to Congress in this area, all bets are off, and you could regulate that market in any rational way.
See also Justices Kennedy and Scalia; Ginsburg with the save attempt:
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?
GENERAL VERRILLI: So two things about that, Justice Kennedy. First, we think this is regulation of people's participation in the health care market, and all -- all this minimum coverage provision does is say that, instead of requiring insurance at the point of sale, that Congress has the authority under the commerce power and the necessary proper power to ensure that people have insurance in advance of the point of sale because of the unique nature of this market, because this is a market in which -- in which you -- although most of the population is in the market most of the time -- 83 percent visit a physician every year; 96 percent over a five-year period -- so virtually everybody in society is in this market, and you've got to pay for the health care you get, the predominant way in which it's -- in which it's paid for is insurance, and -- and the Respondents agree that Congress could require that you have insurance in order to get health care or forbid health care from being provided -
JUSTICE SCALIA: Why do you -- why do you define the market that broadly? Health care. It may well be that everybody needs health care sooner or later, but not everybody needs a heart transplant, not everybody needs a liver transplant. Why -
GENERAL VERRILLI: That's correct, Justice Scalia, but you never know whether you're going to be that person.
JUSTICE SCALIA: Could you define the market -- everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.
GENERAL VERRILLI: No, that's quite different. That's quite different. The food market, while it shares that trait that everybody's in it, it is not a market in which your participation is often unpredictable and often involuntary. It is not a market in which you often don't know before you go in what you need, and it is not a market in which, if you go in and -- and seek to obtain a product or service, you will get it even if you can't pay for it. It doesn't -
JUSTICE SCALIA: Is that a principal basis for distinguishing this from other situations? I mean, you know, you can also say, well, the person subject to this has blue eyes. That would indeed distinguish it from other situations. Is it a principle basis?
I mean, it's -- it's a basis that explains why the government is doing this, but is it -- is it a basis which shows that this is not going beyond what -- what the -- the system of enumerated powers allows the government to do.
GENERAL VERRILLI: Yes, for two reasons. First, this -- the test, as this Court has articulated it, is: Is Congress regulating economic activity with a substantial effect on interstate commerce?
The way in which this statute satisfies the test is on the basis of the factors that I have identified. If--
JUSTICE GINSBURG: Mr. Verrilli, I thought that your main point is that, unlike food or any other market, when you made the choice not to buy insurance, even though you have every intent in the world to self-insure, to save for it, when disaster strikes, you may not have the money. And the tangible result of it is -- we were told there was one brief that Maryland Hospital Care bills 7 percent more because of these uncompensated costs, that families pay a thousand dollars more than they would if there were no uncompensated costs.
I thought what was unique about this is it's not my choice whether I want to buy a product to keep me healthy, but the cost that I am forcing on other people if I don't buy the product sooner rather than later.
And Justice Alito, finally—though this is actually pretty early in the argument:
JUSTICE ALITO: Do you think there is a, a market for burial services?
GENERAL VERRILLI: For burial services?
JUSTICE ALITO: Yes.
GENERAL VERRILLI: Yes, Justice Alito, I think there is.
JUSTICE ALITO: All right, suppose that you and I walked around downtown Washington at lunch hour and we found a couple of healthy young people and we stopped them and we said, "You know what you're doing? You are financing your burial services right now because eventually you're going to die, and somebody is going to have to pay for it, and if you don't have burial insurance and you haven't saved money for it, you're
going to shift the cost to somebody else."
Isn't that a very artificial way of talking about what somebody is doing?
GENERAL VERRILLI: No, that -
JUSTICE ALITO: And if that's true, why isn't it equally artificial to say that somebody who is doing absolutely nothing about health care is financing health care services?
... I don't see the difference. You can get burial insurance. You can get health insurance. Most people are going to need health care. Almost everybody. Everybody is going to be buried or cremated at some point. What's the difference?
GENERAL VERRILLI: Well, one big difference, one big difference, Justice Alito, is the -- you don't have the cost shifting to other market participants. Here -
JUSTICE ALITO: Sure you do, because if you don't have money then the State is going to pay for it. Or some -
GENERAL VERRILLI: That's different.
JUSTICE ALITO: Or a family member is going to pay.
What's most distressing to me is that the conservative Justices had very few questions for the two attorneys opposing the ACA; that time was dominated by the liberal Justices looking for arguments in defense of the ACA.
I'm not guaranteeing anything, but this doesn't bode well.
