It’s evident after reading the transcripts of the arguments before the U.S. Supreme Court Tuesday that the advocates of the Affordable Care Act have a problem. How exactly does the U.S. Constitution authorize the federal government to force Americans to buy health insurance?
Solicitor General Donald Verrilli gave it his best shot: Everyone uses health care at some point. Insurance is the primary method of paying for health care. The Congress, using the Commerce Clause of the Constitution, can regulate how health care is financed.
Still, it was a tough slog for Verrilli, who came under intense questioning by several members of the court… and not just the conservative justices.
The media paid particular attention to Justice Anthony Kennedy, a frequent swing vote, who told Verrilli that the government had a “very heavy burden of justification” to show where the Constitution authorizes the individual mandate—the requirement that people buy insurance.
And this is where the government’s argument runs into trouble.
“This is not a purchase mandate,” Verrilli told the court, presumably with a straight face. “This is a law that regulates the method of payment for services the class of people to whom it applies are either consuming or inevitably will consume.”
But if it’s not a purchase mandate, why must people either buy insurance or pay a penalty under the health care law? The way the law regulates the method of payment is to require people to buy insurance, that is, engage in a particular economic activity.
The questioning justices naturally flowed into the next logical question. If the government can force you to buy insurance, what else can it do? Justice Sonia Sotomayor asked, “Can the government force you into commerce… and there’s no limit to that power?”
And that gets to the defining point of the case.
The government has never before required the people of this country to buy a particular good or service, simply as a condition of living here. And perhaps more importantly, the government has never before threatened punitive action against its citizens for not engaging in a chosen commercial activity.
The supporters of the health care law are trying to stretch the Commerce Clause of the Constitution to somehow make it fit their needs, all the while forgetting, or ignoring, that the Constitution provides limited and enumerated powers.
Interestingly, the government has an economically viable argument; the only way to pay for this particular health care plan is to force everybody into the pool. Insurers need the premiums from young, healthy customers to pay for the health care for the sick.
But that does not answer the larger Constitutional question of whether this chosen method of financing the plan is proper. It’s evident from the questioning yesterday that a number of the justices, and hopefully a majority, suspect that the individual mandate portion of the health care law is beyond Washington’s reach.