Posted on 03/27/2012 11:47:52 AM PDT by Servant of the Cross
There was talk of broccoli. And gym memberships. Even burials. All the potential future mandates Congress could enact, thereby forcing us to make purchases because it’s good for us, and it’s good for the country. Despite the hysteria you may be seeing from both supporters and opponents of the Patient Protection and Affordable Care Act, it’s too difficult to say that one particular side “won” today. The questions were generally tough – especially from Justice Anthony Kennedy – and the final decision will come down to whether the Court decides that the mandate extends the commerce power too much, or if it’s narrow enough to allow Congress to address a national concern.
While the chief Obamacare defender found himself in tight spots, the attorneys attacking the mandate weren't spared from hard questions. The major swing vote on the Court, Justice Kennedy, revealed that he might not be ready to strike down the mandate.
Solicitor General Donald Verrilli was first to advocate his position. He stumbled out of the blocks, stammering and coughing as he made his opening statement.
Once he picked up momentum, however, he’d barely begun explaining Congress’ intent in enacting the “minimum coverage provision” (the government doesn’t use the word “mandate”) before Justice Antonin Scalia hit him with the first question.
He wanted to know if the government could regulate his failure to purchase anything . No, said Mr. Verrilli; health insurance is unique because everyone is in the market for health care at one point or another in their lives, and they can’t control when they’ll need it.
Chief Justice John Roberts then asked if, by this justification, the government could force individuals to buy a cell phone, as one never knows when the need to call 911 will arise. Justice Samuel Alito chimed in with burials – we’ll all die someday, and will need to cover that cost, too, right?
Mr. Verrilli disagreed, and a debate about the particular nature of the regulation at hand (i.e. the mandate) arose: the central tension lies with whether Congress is regulating commerce that is already occurring, or whether they are forcing new customers into the market, thereby creating commerce.
Obviously, the government takes the first position, whereas the Justices were suggesting that the latter. This lead into the nature of the market that’s being regulated: is it health care, i.e. treatment, or health insurance, i.e. the method of paying for treatment?
The Justices seemed willing to accept that technically, everyone participates in health care; but does that, then, give the government the right to force people into the insurance market?
Mr. Verrilli brought up that Congress was attempting to curb the instance of cost shifting from the uninsured to the insured and taxpayers with the guaranteed issue and community rating policies. Surely, Congress was well within its rights to impose those regulations on insurance companies. However, those policies only work if everyone must purchase insurance, otherwise only the sick choose to purchase insurance, while the healthy stay out of the costly market.
Justice Kennedy broke in with his first question, one which ought to galvanize PPACA opponents: the mandate is assumed to be a step beyond precedent – it’s never been done before – and therefore, doesn’t the government have “a heavy burden” to justify the mandate under the Constitution?
Mr. Verrilli began answering, but was cut off by Justice Scalia’s question, involving the ever-present forced-purchase-of-broccoli example. Mr. Verrilli responded by emphasizing the unique nature of the healthcare market, prompting Justice Scalia to note that unpredictability is the justification for the policy; but where is the constitutional justification?
Justice Kennedy then issued the very direct request that Mr. Verrilli “identify limits on the commerce clause.”
And this is where the distinction between health care and health insurance came into play. According to the government, health care is the commodity in question; health insurance is the means of paying for that commodity. Therefore the justification, Mr. Verrilli said, came from the fact that Congress isn’t forcing the purchase of a commodity, but rather the means of paying for a commodity.
Here, the Chief Justice broke in and noted that forcing healthy people to buy insurance wouldn’t cover their costs, but the cost of others who would use health care. Mr. Verrilli continued to emphasize that in the government’s view, this isn’t a mandate, but a regulation on how to pay for something. The How is insurance; the something is care.
He then began to defend the mandate on Necessary and Proper grounds, but Justice Scalia said that while it may be necessary for Congress’ purpose of reforming the healthcare system, the mandate is not proper. There’s a clue: he will more likely than not vote no on the mandate.
Justice Kennedy then brought up the point that the federal government is saying that it has the duty to force citizens to act, and that has never been seen before. This, he said, is a new relationship between the federal government and individuals. Now, take that with a grain of salt, as it doesn’t mean he automatically believes it to be improper – just new. It sounds as though he’ll have to consider whether the federal government may have this kind of relationship with the individual.
Chief Justice Roberts then questioned the limits of Congress’ potential power to issue mandates. It only applies to insurance, and nothing else? Isn’t it an overreach of the Court’s power to say, Congress, you may safely issue a mandate on insurance using commerce power, but you can’t mandate anything else? What happens the next time a problem arises where everyone participates in a market? Does the Court expand the power again?
The Chief Justice was concerned that once the Court accepts this principle – that everyone participates in the market, and so Congress may regulate all facets of it – then “all bets are off” for limits on federal power.
In defense, Mr. Verrilli wasn’t able to name a constitutional limit to the power; the only one he seemed to have was that Congress wasn’t claiming the power to mandate anything else. What the Chief Justice would likely tack on to that explanation is a big, “yet.”
Mr. Verrilli then tried to defend the mandate under the tax-and-spend power (remember when they said it wasn’t one yesterday?). However, Justice Scalia pointed out that President Obama has always said the mandate is not a tax. Then, Justice Kennedy asked why Congress just didn’t refer to it as a tax in the bill? Mr. Verrilli’s response was essentially, they didn’t need to, since it would still raise revenue. At four minutes to eleven, his time was up, and Paul Clement, attorney for the states, stood before the Court.
Mr. Clement began by noting that there is no limiting principle to the mandate. Justice Sonia Sotomayor then asked if he accepted the premise that Congress mandate health care be paid for by insurance. Sure, said Mr. Clement. But they can’t force individuals to buy that insurance. Justice Kennedy then wanted to know if the federal government considered the healthy, uninsured population an “actuarial reality,” implying a willingness to uphold the law.
Chief Justice Roberts, too, asked some skeptical questions of Mr. Clement, noting that the government says everyone is in the market in this case. Mr. Clement responded by reiterating the government’s distinction between health care and health insurance, and arguing that while everyone may be in the market for the former, the latter is a purchasable commodity, and everyone is not in that market.
The proper question for the Court to address, Mr. Clement said, is does Congress have the power to compel entrance into the market, because that would best serve the regulation of the market? He again noted that not everyone is in the insurance market, and that the case wouldn’t be sitting in Court of Congress had chosen to incentivize entrance into the market, rather than force it.
Mr. Clement argued for half an hour, splitting the second hour with Michael Carvin, attorney representing the National Federation of Independent Business.
When Mr. Carvin took the stand, a number of reporters stood up and left. An hour and a half of the hearing had gone by, and the start of Mr. Carvin’s time, the questions seemed much the same as they’d been for Mr. Clement. Indeed, for about twenty minutes, the four liberal Justices of the court – Stephen Breyer, Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg – peppered Mr. Carvin with queries about the unique nature of the health insurance market, just as they’d predictably done with Mr. Clement.
But one hour and fifty-two minutes into the hearing, Justice Anthony Kennedy deigned to speak again, and his question changed, at the very least, this reporter’s mind about his potential ruling.
He said he found that the “young person who is uninsured” is “uniquely close to participating” in the health insurance market. Translation: I could justify the individual mandate.
His statement hearkens back to a 2005 ruling the Court made on Gonzales v. Raich, in which Justice Scalia wrote a concurring opinion that PPACA proponents see as justification for the mandate. In it, he wrote that the federal government had the right to regulate possession of medical marijuana – which was legal in the state, California – because a person possessing marijuana for noneconomic reasons was just one step away from participating in the market. If Justice Kennedy finds that remaining uninsured is “uniquely close” to market participation, then he may be willing to uphold the mandate on the grounds that this, an intrastate activity, “substantially affects” the interstate market.
No matter what the Justices ultimately decide on the issue – the decision is expected sometime in June – at least one assumption about the healthcare case was wrong: it’s not a slam-dunk for the mandate’s supporters. Five of the Justices clearly saw some glaring legal problems with it. While their line of questioning doesn’t necessarily dictate how they will rule, it certainly reveals what they’ll take into consideration. It seems like a limiting principle is the biggest concern. If they can find one, the law will likely be upheld. If they can’t, then goodbye, individual mandate.
The most expensive healthcare decision is for a mother to give birth.
It’s a personal decision that creates a fantastic burden for the rest of society through interstate infrastructure requirements, administrative costs, not to mention the healthcare costs for the new person.
Thus, a ONE CHILD POLICY should be supportable in America under the Commerce Clause.
If SCOTUS rules in favor of O care, we are finished as a nation. Nothing would stop Obama at this point.
Posted this on another thread, but it’s appropriate here as well.
Since the Commerce Clause gives broad powers to Congress to regulate commerce to the extent of the federal government’s choosing, what’s to stop future Congresses from requiring every American to purchase a minimum amount of life insurance and name the federal government as beneficiary?
As it creates a steady flow of $ down the budgetary black hole, how nicely that would fit into the government’s decision-making powers under Obamacare as to how much, how little or if any health care is to be granted.
After all... with the government in the dual, conflicting roles as health care insurer, and beneficiary as a result of your death, what’s the incentive for granting you access to costly life-saving medical procedures?
As a result, Big Brother wins twice by denying care.
kENNEDY IS KEY, FOR EITHER SIDE
It means nothing and just gives cover to the pusillanimity of the judiciary
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ANYTHING you do can have a “significant effect on the cost of healthcare”, so it can be regulated.
That means you CAN be forced to eat Moochelle’s prescribed food.
But one thing that won’t be regulated, though it has a lot more effect on healthcare costs than eating a cheeseburger - male homosexual behavior.
If it's just so much kabuki theater, why even bother to post (repeatedly) about it?
yup.
“No, said Mr. Verrilli; health insurance is unique because everyone is in the market for health care at one point or another in their lives, and they can’t control when they’ll need it.”
At least he’s honest. The administration’s argument basically boils down to “Healthcare is super special and not subject to the same rules as everything else.” This conclusion is a natural outgrowth of their inborn love of socialized medicine, and therefore lacks subtle constitutional justification. What’s a bunch of legalese next to love for socialism and shame at being left behind not only enlightened Europe but freakin’ Canada, too?
Seriously, though, he thinks healthcare is special because everyone needs it at some point? Know what everyone needs and buys constantly? Food. Does that mean the feds can tell me what to eat, force me to buy food insuance, and take money out of my pocket to feed poor urbanites amidst “food deserts”? He’d say “yes,” of course. But most people can see through this nonsense.
You can’t take the healthcare industry as a whole, call it “interstate commerce,” and expect on that basis to tell each and every individual—who may or may not at that moment be transacting in that market—what they have to buy. It’s idiotic. The industry as a whole has nothing to do with Joe Outopocket. You cannot conjure economic activity on his part out of thin air in order to regulate it.
I saw no discussion of questioning whether health insurance is the subject of interstate commerce, and thus even under the jurisdiction of the FedGov.
While it might be argued that health care crosses state lines, each State regulates its own health care insurance, and it is currently illegal under federal law for a resident one one State to purchase health care insurance from an Insurance company residing in another State. So ... How can that be interstate commerce?
It seems to me that once Congress passes a law to forbid interstate commerce, it cannot then turn around and justify an intervention based on its power to regulate interstate commerce.
I even believe that a case can be made that Wickard vs. Filmore does not apply, or even Raich ... because the purchase or non purchase of insurance, or the raise or fall of insurance rates in one State does not affect the insurance rates in any other State.
Why didn’t someone raise this issue?
“health insurance is unique because everyone is in the market for health care at one point or another in their lives”
Needing care does not equate to needing insurance. Many people (”1%ers”) can afford whatever bill they get. Others can negotiate long term payments (say, heart surgery at $10/day for life), or delays pursuant to liquidating other assets. You can also say “no”.
Everyone eats every day. Don’t tell me the Feds thus have the power to take over grocery bills.
I’ve wondered that too. If the Feds ban interstate commerce in some industry, they’ve pretty much eliminated any power to regulate any farther.
Food, like you said, is even more obviously something that this new all powerful government could force us to buy. The Gov. is forced to buy food for poor people, and when people don't buy their own food, but show up at a food bank, it causes increased costs for all of us. So, we are going to force everyone to buy the food that we want them to.
I wish someone would get into the clearly phony justification for all of this. Insuring the small percentage of people who are uninsured and want to be, or covering their health costs as we have been for decades, would cost $x. So, to fix that alleged problem, Obama and the Dems want to create an entirely new manner of delivering health care to Americans, destroying an entire industry and replacing it with a government run one, at a cost that is $50x and disruption of the health care of the 90 percent who have proper health care. The court normally doesn't examine whether a legislative policy is stupid, only whether it is constitutional, but when a policy is this insane, and this unrelated to the size of the actual problem, the relative stupidity might point to a reason why the government wants to do this, a reason that is indicative of an insidious desire to destroy freedom in this country. If the Constitution has any perambulas emanating from it, they emanate to the side of preservation of personal liberty. That is what the Court needs to guard. All these esoteric arguments that excite the court watchers are just smoke and nonsense. The real issue is, does your version of the Constitution allow us to remain free? Or is that concept gone?
“and this unrelated to the size of the actual problem”
Yes, but you must understand that socialist solutions are not necessarily related to the problems they are proposed to solve. Socialism is an answer perpetually in search of problems. Economic inequality got you down? Whatever shall we do? I’ve got it: socialism! Government corruption? Socialism. Global warming? Socialism. Apathy amongst the nation’s youth? Socialism. You get the gist. There’s no problem too small to be fixed by fundamentally revamping the relation of citizens to their government.
It’s quite obviously unrelated in the case of healthcare. Only a fool would cure rapidly rising costs by demanding more people be covered. Actually to be fair, there were two purported problems: risings costs and not enough people being covered. Only the second problem wasn’t a problem, unless you’re already a socialist. Also, covering more people is a solution to rising costs only when you figure in a third, unspoken, wildly unpopular factor: centralized rationing of care. Which sorta defeats the purpose of extending coverage, unless your goal is to redistribute care from Fat Cats who can pay as it is, and fictitious Victorian waifs starving in the street from lack of birth control.
But I digress. Point is, the healthcare market as it stands does not require socialism to persist. You’d only come to that conclusion if you’ve already made up your mind in favor of socialism beforehand. Leftists, it hardly needs be said, want universal healthcare, just like good ol’ Europe/Canada/Cuba/etc. The Constitution doesn’tallow for it, in any fashion I can imagine and certainly not in its present form (which, by the way, is far, far short of where they’d like it to be).
But who cares about the Constitution? Not SCOTUS, for 70 years at least. Maybe now, if only because the mandate is that painfully obviously out of bounds.
“Which sorta defeats the purpose of extending coverage, unless your goal is to redistribute care from Fat Cats who can pay as it is, and fictitious Victorian waifs starving in the street from lack of birth control.”
That should be: from Fat Cats TO starving waifs.
I agree with all you said.
Now that I think about it, we don’t just need to nationalize homeowners’ insurance, we need to nationalize housing. How else are we going to bring the values of properties down so that we can give everyone a home? Don’t worry; if you like your current home ownership, we’ll let you keep it. You might have a new roommate, though.
I hope Thomas writes a separate opinion when this is over. I can only imagine what he must be thinking about this circus.
I’d like to see his opinion that he wants to overturn Wickard v. Filburn and all the commerce clause cases, but he agrees with the result. Get the idea out there, and start working on planting the seed so that the public will be ready for it when the court is better constituted. This is why the difference between Romney and Gingrich is so important. It is the difference between more Souters and Stewarts, and having Thomas and Scalia. (I realize that Bush I nominated Thomas, but he would not have had he known he was a real conservative. Souter and Kennedy were more his kind of SC justice.)
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