In day two of arguments on PPACA, the Supreme Court grilled the attorneys representing both sides of the challenge on the individual mandate. And, as many expected, the justices appear divided down party lines.
The Solicitor General, Don Verrilli, spoke first, presenting his argument for the constitutionality of the individual mandate. A few of the questions he faced:
Chief Justice Roberts: So, can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? You can just dial 911 no matter where you are?
Justice Scalia: An equally evident constitutional principle is the principle that the federal government is a government of enumerated powers and that the vast majority of powers remain in the states and do not belong to the federal government. Do you acknowledge that’s a principle?
Justice Kennedy: 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 of some relation between you … And here the government is saying that the federal government has a duty to tell the individual citizen 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 a very fundamental way.
Justice Kennedy’s questions were perhaps most important, since he is the lone conservative judge experts have predicted may uphold the mandate.
Next up was Paul Clement for the 26 states challenging PPACA, fielding questions such as these:
Justice Kagan: Mr. Clement, not it seems as though you’re just talking about a matter of timing, that Congress can regulate the transaction. And the question is when does it make best sense to regulate that transaction? And Congress surely has it within its authority to decide, rather than at the point of sale, given an insurance-based mechanism, it makes sense to regulate it earlier.
Justice Ginsburg: Congress in the 30s saw a real problem of people needing to have old age and survivor’s insurance. And yes, they did it through a tax, but they said everybody has got to be in it because if we don’t have the healthy in it, there’s not going to be the money to pay for the ones who become old or disabled or widowed. So, they required everyone to contribute.
There was a big fuss about that in the beginning because a lot of people said — maybe some people still do today — I could do much better if the government left me alone. I’d go into the private market, I’d buy an annuity, I’d make a great investment, and they’re forcing me to pay for this Social Security I don’t want. But that’s constitutional.
So if Congress could see this as a problem when we need to have a group that will subsidize the ones who are going to get the benefits, it seems to me you’re saying the only way that could be done is if the government does it itself; it can’t involve the private market, it can’t involve the private insurers.
If it wants to do this, Social Security is its model. There has to be a government takeover. We can’t have the insurance industry in it. Is that your position?
Ending the day’s arguments was Michael Carvin, representing the National Federation of Independent Business and arguing for the overturn of the mandate. In this round, Justice Kennedy expressed concern regarding the challengers argument, giving a small glimmer of hope to the Obama administration.
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. That’s my concern in this case.
Tuesday court audio and transcript
Health care reform heads to the Supreme Court: day one