Today, the fireworks erupted in day two of oral arguments before the Supreme Court on the constitutionality of ObamaCare’s individual mandate.
One of the first questions set the tone for the entire argument – skepticism over the constitutionality of the linchpin of ObamaCare. Justice Kennedy got to the heart of the debate over the individual mandate asking, “Can you create commerce in order to regulate it?”
Justice Scalia chimed in asking, “if I'm in any market at all, my failure to purchase something in that market subjects me to regulation.”
Chief Justice Roberts noted that there is always the unforeseen possibility that one will “need police assistance or fire assistance or ambulance assistance.” “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 Alito went even further asking whether Congress could force people to purchase something that is a known need of everyone, burial services.
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? . . .
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?
Justice Alito continued, “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?”
Justice Alito further stated:
[I]t appears to me that the CBO has estimated that the average premium for a single insurance policy in the non-group market would be roughly $5,800 in -- in 2016.
Respondents -- the economists have supported -- the Respondents estimate that a young, healthy individual targeted by the mandate on average consumes about $854 in health services each year. So the mandate is forcing these people to provide a huge subsidy to the insurance companies for other purposes that the act wishes to serve, but isn't -- if those figures are right, isn't it the case that what this mandate is really doing is not requiring the people who are subject to it to pay for the services that they are going to consume? It is requiring them to subsidize services that will be received by somebody else.
This barrage of questions, skeptical of the government’s argument that Congress has the power to force everyone to buy health insurance, came in the first 9 minutes of oral argument.
Yet, it was Justice Kennedy who issued the strongest words of caution, calling ObamaCare “unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce.” He warned the government that it bore “a heavy burden of justification.” He further reiterated, “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?”
The Solicitor General’s answer to this, and most other, questions was “we think this is regulation of people’s participation in the health care market.” That line became the government’s mantra throughout the rest of the oral argument.
Justice Scalia questioned the federal government’s insistence that we must “define the market that broadly? Health care.” He pointed out that “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.”
As to the government’s expansive definition of the market, Justice Roberts also noted, “You cannot say that everybody is going to participate in the substance use market and yet you require people to purchase insurance coverage for that.”
Justices Ginsburg, Breyer, and to some extent Kagan, continually attempted to bail the Solicitor General out of tough spots by suggesting what they thought the government’s best argument was.
Justice Kennedy returned to one of the central questions of the case, “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?” This is the heart of the ACLJ’s argument to the Supreme Court, that if ObamaCare is constitutional, there are no limits on the power of Congress. Even Justice Sotomayor agreed that “there has to be a limiting principle.”
The federal government was yet again unable to find any limiting principle in ObamaCare. Chief Justice Roberts was unpersuaded by the Solicitor General’s attempts, stating, “I don’t understand that distinction.”
He also expressed his concern about the extent to which Congress’ power would be expanded if the Court were to uphold ObamaCare:
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.
Yet, Justice Breyer went so far as to suggest that there need be no such limits on Congress’ power under the Commerce Clause:
I would have thought that your answer -- can the government, in fact, require you to buy cell phones or buy burials that, if we propose comparable situations, if we have, for example, a uniform United States system of paying for every burial such as Medicare Burial, Medicaid Burial, CHIP Burial, ERISA Burial and Emergency Burial beside the side of the road, and Congress wanted to rationalize that system, wouldn't the answer be, yes, of course, they could.
Justice Scalia directly told the government that it isn’t regulating commerce, “You’re not regulating health care.” “You’re regulating somebody who isn’t commerce.” Justice Scalia also addressed the federal government’s assertion that ObamaCare is a proper exercise of the Necessary and Proper Clause:
[It] 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?
. . . .
I mean, the Tenth Amendment says the powers not given to the Federal Government are reserved, not just to the States, but to the States and the people. And the argument here is that the people were left to decide whether they want to buy insurance or not.
The Chief Justice also reminded the federal government that “the States are not limited to enumerated powers. The federal Government is. And it seems to me it’s an entirely different question when you ask yourself whether or not there are going to be limits in the federal power, as opposed to limits on the States . . . .”
Justice Kennedy again reiterated that “the reason this is concerning, is because it requires the individual to do an affirmative act. . . . [It] changes the relationship of the Federal Government to the individual in the very fundamental way.”
When the discussion turned to whether ObamaCare’s individual mandate could be constitutional as an exercise of Congress’ power to tax, members of the Court from both the left (Justices Sotomayor, Kagan, and Ginsburg) and the right (Justices Scalia and Chief Justice Roberts) agreed. ObamaCare is not a tax. As Justice Scalia noted, “The President said it wasn’t a tax,” and Justice Ginsburg added that it was a penalty “designed to affect conduct . . . not to raise revenue.”
Justice Breyer appeared to support ObamaCare, stating that “sometimes Congress can create commerce out of nothing,” and he proceeded for several minutes to lay out his reasoning for why ObamaCare’s individual mandate could be constitutional.
Justice Breyer actually went so far as to suggest that “when you are born, and you don't have insurance, and you will in fact get sick, and you will in fact impose costs, have you perhaps involuntarily -- perhaps simply because you are a human being -- entered this particular market, which is a market for health care?”
Justice Alito pushed back against some of Justice Breyer’s hypotheticals, noting:
[T]he reason why there is cost shifting is because the government has mandated that. It has required hospitals to provide emergency treatment, and instead of paying for that through a tax which would be born by everybody, it has required -- it has set up a system in which the cost is surreptitiously shifted to people who have health insurance and who pay their bills when they go to the hospital.
Paul Clement, representing the States, focused the Court back to the crux of the case:
The question that's a proper question for this Court, though, is whether or not, for the first time ever in our history, Congress also has the power to compel people into commerce, because, it turns out, that would be a very efficient things for purposes of Congress' optimal regulation of that market.
In closing his argument and answering Justice Sotomayor’s question as to whether the states could constitutionally enact a similar law on the state level, Clement succinctly noted that “the States can do it because they have a police power, and that is the fundamental difference between the States on the one hand and the limited, enumerated Federal Government on the other.”
After today's oral arguments it appears that this could be close decision, more so than many people expected. You can listen to today’s oral argument here or read the transcript here. You can learn more about the ACLJ’s legal analysis of the individual mandate issue here.
Interestingly, as a precursor to tomorrow’s argument over severability – whether, if the individual mandate is unconstitutional, the entire law must be struck down – Justice Ginsburg noted:
I thought it was common ground that the requirement that the insurers -- what was it, the community-based one and they have to insure you despite your health status; they can't refuse because of preexisting conditions. The government tells us and the Congress determined that those two won't work unless you have a pool that will include the people who are now healthy.
Watch Jay Sekulow’s analysis of today’s oral arguments on Fox News here. We will continue to keep you informed as the as each day’s oral arguments progress.