Interesting debate on The Affordable Health Care Act (so called Obamacare) before the Supreme Court last week. The biggest issues centered on the mandate which compels every citizen to purchase health insurance. The second issue relates to the severability of the mandate portion from the rest of the bill.
In Canada, we do not have this problem because in Ontario, at least, we have public insurance that government of Ontario provides. We pay into it through taxation. In the US, they have medicare but also have private insurance.
The problem that is unique in this case is that the federal government is positively mandating you to purchase something (in this instance health insurance) and the constitution does not give the federal government that power except where it relates to commerce and this is precisely where the debate is joined. The government is claiming the federal government does have that power due to the unique nature of the health care market.
The audio of the oral arguments from Day 1 Tuesday are below and the transcript here. Here are some of the questions posed to the lawyer representing the administration, Solicitor General Verrili.
JUSTICE KENNEDY: Can you create commerce in order to regulate it?
GENERAL VERRILLI: That's not what's going on here, Justice Kennedy, and we're not seeking to defend the law on that basis. In this case, the -- what is being regulated is the method of financing health -- the purchase of health care. That itself is economic activity with substantial effects on interstate commerce. And -
JUSTICE SCALIA: So, any self-purchasing? Anything I -- you know, if I'm in any market at all, my failure to purchase something in that market subjects me to regulation.
GENERAL VERRILLI: No. That's not our position at all, Justice Scalia. In the health care market -- the health care market is characterized by the fact that aside from the few groups that Congress chose to exempt from the minimum coverage requirement -- those who for religious reasons don't participate, those who are incarcerated, Indian tribes -- virtually everybody else is either in that market or will be in that market, and the distinguishing feature of that is that they cannot -- people cannot generally control when they enter that market or what they need when they enter that market.
CHIEF JUSTICE ROBERTS: Well, the same, it seems to me, would be true, say, for the market in emergency services: police, fire, ambulance, roadside assistance, whatever. You don't know when you're going to need it; you're not sure that you will. But the same is true for health care. You don't know if you're going to need a heart transplant or if you ever will. So, there's a market there. In some extent, we all participate in it. 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?
GENERAL VERRILLI: No, Mr. Chief Justice. think that's different. It's -- we -- I don't think we think of that as a market. This is a market. This is market regulation. And, in addition, you have a situation in this market not only where people enter involuntarily as to when they enter and won't be able to control what they need when they enter, but when they
CHIEF JUSTICE ROBERTS: It seems to me that's the same as in my hypothetical. You don't know when you're going to need police assistance. You can't predict the extent to emergency response that you'll need, but when you do -- and the government provides it. I thought that was an important part of your argument, that when you need health care, the government will make sure you get it. Well, when you need police assistance or fire assistance or ambulance assistance, the government is going to make sure to the best extent it can that you get it.
It goes on according to that theme and it is very useful to listen to the argument. I thought Justice Kennedy brought up the fundamental issue later in the transcript.
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?
Scalia raised the federalist point that Romney has actually raised; namely that this is a state issue and not a federal one.
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?
Here is the dagger, I think.
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 a very fundamental way.
On the other hand, Justice Ginsberg made a good point drawing an analogy to social security which is constitutional.
JUSTICE GINSBURG: Mr. Clement, doesn't that work -- that work the way Social Security does? Let me put it this way: 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 paying for this Social Security that I don't want.
And Justice Sotomayor make a really good argument around automobile insurance and if the federal government could compel people to buy automobile insurance.
JUSTICE SOTOMAYOR: But we don't in car insurance, meaning we tell people, buy car -- not we, the States do, although you're going to -- I'll ask you the question, do you think that if some States decided not to impose an insurance requirement, that the Federal Government would be without power to legislate and require every individual to buy car insurance?
Finally, and I will end here. Here is Breyer's argument.
JUSTICE BREYER: Of course, we do know that there are a few people, more in New York City than there are in Wyoming, who never will buy a car. But we also know here, and we don't like to admit it, that because we are human beings, we all suffer from the risk of getting sick, and we also all know that we'll get seriously sick. And we also know that we can't predict when. And we also know that when we do, there will be our fellow taxpayers through the Federal Government who will pay for this. If we do not buy insurance, we will pay nothing. And that happens with a large number of people in this group of 40 million, none of whom can be picked out in advance.
Now, that's quite different from the car situation, and it's different in only this respect: It shows there is a national problem, and it shows there is a national problem that involves money, cost, insurance. So, if Congress could do this, should there be a disease that strikes the United States and they want every one inoculated even though 10 million will be hurt, it's hard for me to decide why that isn't interstate commerce, even more so where we know it affects everybody.
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. The government has to do -there has to be government takeover. We can't have the insurance industry in it. Is that your position?
In Canada, we do not have this problem because in Ontario, at least, we have public insurance that government of Ontario provides. We pay into it through taxation. In the US, they have medicare but also have private insurance.
The problem that is unique in this case is that the federal government is positively mandating you to purchase something (in this instance health insurance) and the constitution does not give the federal government that power except where it relates to commerce and this is precisely where the debate is joined. The government is claiming the federal government does have that power due to the unique nature of the health care market.
The audio of the oral arguments from Day 1 Tuesday are below and the transcript here. Here are some of the questions posed to the lawyer representing the administration, Solicitor General Verrili.
JUSTICE KENNEDY: Can you create commerce in order to regulate it?
GENERAL VERRILLI: That's not what's going on here, Justice Kennedy, and we're not seeking to defend the law on that basis. In this case, the -- what is being regulated is the method of financing health -- the purchase of health care. That itself is economic activity with substantial effects on interstate commerce. And -
JUSTICE SCALIA: So, any self-purchasing? Anything I -- you know, if I'm in any market at all, my failure to purchase something in that market subjects me to regulation.
GENERAL VERRILLI: No. That's not our position at all, Justice Scalia. In the health care market -- the health care market is characterized by the fact that aside from the few groups that Congress chose to exempt from the minimum coverage requirement -- those who for religious reasons don't participate, those who are incarcerated, Indian tribes -- virtually everybody else is either in that market or will be in that market, and the distinguishing feature of that is that they cannot -- people cannot generally control when they enter that market or what they need when they enter that market.
CHIEF JUSTICE ROBERTS: Well, the same, it seems to me, would be true, say, for the market in emergency services: police, fire, ambulance, roadside assistance, whatever. You don't know when you're going to need it; you're not sure that you will. But the same is true for health care. You don't know if you're going to need a heart transplant or if you ever will. So, there's a market there. In some extent, we all participate in it. 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?
GENERAL VERRILLI: No, Mr. Chief Justice. think that's different. It's -- we -- I don't think we think of that as a market. This is a market. This is market regulation. And, in addition, you have a situation in this market not only where people enter involuntarily as to when they enter and won't be able to control what they need when they enter, but when they
CHIEF JUSTICE ROBERTS: It seems to me that's the same as in my hypothetical. You don't know when you're going to need police assistance. You can't predict the extent to emergency response that you'll need, but when you do -- and the government provides it. I thought that was an important part of your argument, that when you need health care, the government will make sure you get it. Well, when you need police assistance or fire assistance or ambulance assistance, the government is going to make sure to the best extent it can that you get it.
It goes on according to that theme and it is very useful to listen to the argument. I thought Justice Kennedy brought up the fundamental issue later in the transcript.
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?
Scalia raised the federalist point that Romney has actually raised; namely that this is a state issue and not a federal one.
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?
Here is the dagger, I think.
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 a very fundamental way.
On the other hand, Justice Ginsberg made a good point drawing an analogy to social security which is constitutional.
JUSTICE GINSBURG: Mr. Clement, doesn't that work -- that work the way Social Security does? Let me put it this way: 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 paying for this Social Security that I don't want.
And Justice Sotomayor make a really good argument around automobile insurance and if the federal government could compel people to buy automobile insurance.
JUSTICE SOTOMAYOR: But we don't in car insurance, meaning we tell people, buy car -- not we, the States do, although you're going to -- I'll ask you the question, do you think that if some States decided not to impose an insurance requirement, that the Federal Government would be without power to legislate and require every individual to buy car insurance?
Finally, and I will end here. Here is Breyer's argument.
JUSTICE BREYER: Of course, we do know that there are a few people, more in New York City than there are in Wyoming, who never will buy a car. But we also know here, and we don't like to admit it, that because we are human beings, we all suffer from the risk of getting sick, and we also all know that we'll get seriously sick. And we also know that we can't predict when. And we also know that when we do, there will be our fellow taxpayers through the Federal Government who will pay for this. If we do not buy insurance, we will pay nothing. And that happens with a large number of people in this group of 40 million, none of whom can be picked out in advance.
Now, that's quite different from the car situation, and it's different in only this respect: It shows there is a national problem, and it shows there is a national problem that involves money, cost, insurance. So, if Congress could do this, should there be a disease that strikes the United States and they want every one inoculated even though 10 million will be hurt, it's hard for me to decide why that isn't interstate commerce, even more so where we know it affects everybody.
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. The government has to do -there has to be government takeover. We can't have the insurance industry in it. Is that your position?
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