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Supreme Court Oral Arguments on Health Reform, Day 2: Analysis

We posted earlier this week with detailed coverage of the oral arguments over the Anti-Injunction Act (AIA). During the second of three days of oral arguments, the U.S. Supreme Court addressed the constitutionality of the individual mandate to acquire private health insurance coverage, one of the most controversial provisions of the Patient Protection and Affordable Care Act (PPACA).

Yesterday, the Court addressed whether the mandate is severable from the rest of PPACA, and considered the parameters of Congressional authority to expand the eligibility requirements under the Medicaid program. Day 2 Oral Argument Snapshot: – Two hours on the constitutionality of the individual mandate – The heart of the mandate debate is a constitutional question:

  • Does Congress have the power to require Americans to purchase private health insurance coverage, or otherwise prove they have health insurance coverage, or pay a penalty for non-coverage?
  • Does the individual mandate fall under Congress’s power to regulate interstate commerce, or does it exceed that power?

– Quick background on the mandate:

  • Section 1501 of PPACA describes a “requirement to maintain minimum essential coverage.”
  • Individuals without health insurance coverage, even for a single month, must pay a “shared responsibility payment” which will be phased in starting in 2014.
  • Individuals can be exempt from the tax penalty on the basis of financial hardship or religious objection.

– U.S. Solicitor General Don Verrilli argued on behalf of the federal government in favor of the mandate. Verrilli argued that:

  • Insurance is the predominant means of paying for health care in the U.S., and through the mandate, the government is regulating the economic activity of financing and purchasing health care.
  • The mandate is the federal government’s chosen method to regulate interstate commerce.
  • The individual mandate is permissible under Congress’s power to impose taxes.

– Former Solicitor General Paul Clement and Michael Carvin represented opponents to the mandate. Clement argued that:

  • The mandate represents “an unprecedented effort by Congress to compel individuals to enter commerce in order to better regulate commerce.”
  • Even if you buy into the federal government’s argument that the mandate is a “regulation of the economic decision” not to buy insurance, this position gives Congress a lot of power without explicitly imposing any clear limits on that power (a/k/a a “limiting principle”).

– Various questions from the justices during the oral argument indicated that the Court was exploring the possibilities about how to construe the legality of the mandate.

  • Justice Kennedy suggested that Verrilli would have a heavy burden of justification if the mandate actively forces individuals to engage in commerce, however, Kennedy also suggested that the health care industry was “unique” and even a young healthy person was “proximately very close to affecting the rates of insurance and the costs of providing medical care.”
  • The idea of a “limiting principle” was brought up several times in questions by the justices, often in the context of a “slippery slope” of increasing regulatory authority. That is, if Congress may regulate the purchase of private health insurance products, can it also regulate other purchasing choices, such as forcing individuals to buy broccoli?
  • Chief Justice Roberts expressed concern over the slippery slope of increased regulation that the mandate may encourage. He also acknowledged the federal government’s position that “almost everybody is going to enter the health care market,” a fact that is not true of other industries, such as the mortgage market.

– Likelihood of the Court overturning the mandate? Unknown.

  • Whether the Court will overturn the mandate is a hotly contested topic.
  • Though many experts predict the Court will uphold the mandate (with early estimates ranging from 8-1 to 5-4), the fate of the mandate is the least predictable issue of the Court’s decision.
  • Lower courts issued a number of conflicting rulings on the mandate: the 11th Circuit court struck down the mandate, the 6th Circuit and the DC Circuit upheld the mandate, and the 4th Circuit ruled the AIA precludes jurisdiction.

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Does Congress have the power to require Americans to purchase private health insurance coverage?

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