Turning the ACA into Sausage at the Supreme Court

5:30 pm in Affordable Care Act by masaccio

Photo by born1945

The Supreme Court heard oral argument on the requirement that people have health insurance, the mandate. Transcript and audio version here. One of the issues was the constitutional limits on the powers of Congress under the Commerce Clause. Article I, § 8 gives Congress the power: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” In recent times, this clause has been given a broad interpretation, but there are limits. Congress can’t give victims of violence against women the right to sue in federal courts, for example, and it can’t regulate carrying guns near schools. Bmaz has a good discussion of why this kind of limit matters to progressives.

Donald Verrilli, Jr., the Solicitor General, who represents the government’s side, went first. Adam Serwer reports that he got off to a rocky start, coughing and hemming and hawing. Justice Alito posed this question: could Congress require healthy young people to buy burial insurance, using the same kind of arguments Verrilli made in his brief. This should have been an easy one for Verrilli. The bad outcome is that healthy people die with no burial insurance, or other assets to pay for burial. That is a matter traditionally left to county governments. It is low cost, and rare. It is much more like the violence against women tort case. It isn’t at all like the health insurance business which involves hundreds of billions of federal tax dollars.
Here is Verilli’s answer:

GENERAL VERRILLI: It’s — I think it’s completely different. The — and the reason is that the burial example is not — the difference is here you are regulating the method by which you are paying for something else — health care — and the insurance requirement I think — I mean, the key thing here is my friends on the other side acknowledge that it is within the authority of Congress under Article I under the commerce power to impose guaranteed-issue and community-rating reforms, to end — to impose a minimum coverage provision. Their argument is just that it has to occur at the point of sale, and –

Eventually Justice Ginsburg rescued Verrilli from his wallowing: “If you’re going to have insurance, that’s how insurance works.” But I doubt anyone could rescue him from the rest of his arguments.

Then it was Paul Clement’s turn, representing the 26 states that filed this case. He complains bitterly that Congress is forcing individuals into the insurance market to subsidize those who already have health insurance to lower the rates. That’s one way to phrase the free rider problem that plagues the current system to the tune of billions of dollars. Justice Ginsburg explains Social Security to Clement. Read the rest of this entry →