Tuesday, March 27, 2012

SCOTUS Docketwatch–Constitutionality of the Affordable Care Act Day 2: Part 2



Today’s oral arguments focused on several important questions necessary to determine the constitutionality of the minimum coverage provision/individual mandate in the Affordable Care Act:

  • Does an individual’s inaction (decision to not purchase health insurance) qualify as an economic activity that is subject to regulation?
  • Is the mandate only regulating the how and when people pay for insurance, instead of compelling them to pay for insurance?
  • Or is the Law creating commerce with the purpose to regulate it? 
  • Is there any limiting principle to the minimum coverage provision?
  • Is Health Care Insurance a unique market, and what makes it unique to allow the minimum coverage provision?
  • Courtesy of Justice Scalia – Can you make people buy broccoli? (Edtr Note – Trainofthought is very Pro broccoli)

Solicitor General Verrilli attempted to characterize the mandate as government regulation of how and when health insurance is purchased.  Verrilli argued that the government’s action regulated “the means by which health care – by which health care is purchased” (p 4).  Justices Scalia and Kennedy pushed back on this assertion immediately, questioning if instead Congress was creating commerce in order to regulate it. 

Verrilli’s response was that the mandate was not creating commerce, instead – and this goes to the fundamental premise of the government’s argument and purpose for passing the ACA and individual mandate – that health care is a unique market in that:

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.” (p 5)

The Justices followed up by questioning whether this could be true of other markets, and if so, then are there limits to what Congress could do under the directive to regulate commerce.

As loyal Blog follower Luke points out – the question of a limiting principle is extremely important.  Justices Alito and Kennedy seemed especially concerned by this notion, with Justice Scalia posing the broccoli hypothetical:


The Solicitor General distinguished health care with some help from Justice Ginsburg – stressing the unique problem of an individual’s relationship with others in the health care market.


He attempted to differentiate the mandate as only a regulation of the means of payment for health care insurance.  Scalia asked whether or not the mandate would permit Congress to mandate that everyone join an exercise club.  Verrilla argued that would not be permitted because the hypothetical health club membership “is not a means of payment for consumption of anything in a market.” (p 38-41)

From reading the transcript, and listening to the audio, it appeared that the solicitor general had trouble articulating a concise limiting principle (as Justice Breyer and Kennedy requested) for the minimum coverage provision.

As Respondent’s counsel Paul Clement argued against the minimum coverage provision, he stressed 2 main points. First, that Congress was creating commerce for the purpose of regulation in violation of their authority under the commerce clause.  Second, that upholding the mandate would yield nearly unlimited power to Congress, who could hypothetically compel any mandate under its power to regulate commerce.

Clement noted that the main concern for opponents of the mandate is that it penalized someone for not acting. He stressed that in every prior case, Congress provided incentives and regulation for affirmative acts by people:


During the third set of arguments by Michael Carvin (representing the National Federation of Independent Business), Justice Kennedy made a revealing statement that illustrates his main question on the uniqueness of the health insurance and health care markets:


This statement could be a sign of sympathy coming from Justice Kennedy towards the mandate. The Justice elaborated that unlike other markets, here even if a young person refuses to buy insurance on the basis of their present health, they can still affect the market for others as they age to a point where they will eventually need the kind of health care that they cannot afford. 

Don’t you love the theater?  From what I’ve seen, upholding the mandate comes down to whether or not Justice Kennedy can reason a clear limiting principle on the mandate.  It will be tricky. They may get some help tomorrow when the Court hears arguments on severability and when the Court revisits whether or not the mandate can be sustained as part of its tax power. Both Solicitor General Verrilli and Paul Clement argued one hell of a case, but Clement’s oral argument was clearly a step above. Law aside, bear in mind the politics looming in the background – the recent Citizens United ruling, lingering effects of Bush v Gore, and of course the upcoming November election.  

So – have at it in the comments.  I left a lot of analysis out to focus on the main points, but feel free to chime in on any part of the arguments.


  1. I don't know, this really makes me nervous. I think that people are so eager to achieve the ends at stake here that they are missing what a violation of our liberty this is.

    This blog is right on the money when it points out the violations of our liberty that occur when politicians justify the patriot act or assassinations of US citizens on foreign soil. I think this law, if upheld by the supreme court, would be just as grave a development.

    What do you think? How is this violation of our privacy and liberty any less serious than the ones I mentioned above? Keep in mind not just the intended effects of the lawmakers now, but the precedent it sets for future administrations and congressional sessions (whose end goals you may not support).

    At what cost to our liberty are you willing to achieve this goal? Or do you not see this the way I do?

    If you guys have written a piece already concerning my questions that I missed, please refer me to it! I was not able to find one using a google search, but I don't want to waste your time in the comments if you have already addressed these fears of mine elesewhere.

  2. Luke, sorry for not getting back sooner to your comments in this post and the last!

    I don't have time for a full response now (or a dig through the archives for a post that has a full response), but until then, here are my very brief thoughts.

    To me the Supreme Court case and what is being discussed here is fairly different than my objections to the ACA.

    My main objection to the ACA was not related to anything under the commerce clause, which is where I disagree with you based on your comment in the previous post. I don't share the same fear that this would lead to a slippery slope in that regard, just since it has been in the past to defend plenty of sensible cross state issues.

    My main objection to the law is that the government would be forcing you to buy a private product without the option of buying a product that is under more direct democratic control (medicare, a hypothetical public option). While that was my objection to the law, that is not (to the best of my knowledge) the issue being discussed by the supreme court.

    Maybe that answers your question on my take, basically that I have major problems with the law (specifically the individual mandate without a democratically governed choice), but I don't have a problem with what is actually being debated by the Supreme Court.

    Also, (unlike Rahul) I know very little about the constitutionality arguments of the commerce clause in detail, but this seems like it isn't too unprecedented of an interpretation based on my limited knowledge.

  3. Too bad we didn't get a public option, that could have avoided a lot of this kerfuffle.

    In some ways I'm rather peeved about the mandate. One way is that it's more of a mess than the public option. Another is that it struck me at first that it seemed like we were making it illegal to not have health insurance. Like being illegal to drive a car without a car insurance, except that the car is just you being alive. But after reading into this, it seems more like having a tax on drivers that don't have car insurance that recoup's everyone else's losses when those drivers ruin someone else's car in an accident. Except that analogy doesn't work because it's the government that eats that loss when uninsured patients visit the hospital. So it's not as much the government saying "you better have health insurance or you're under arrest!" as the government saying "people that don't buy health insurance cost us $X per year, if you are one of those people then your share in this year's taxes is $X/N." And I'm more OK with that. Especially because the tax is like $XXX, as opposed to the cost of insuring someone privately for a year, which is more like $XXXXX, so it doesn't seem coercive to me.

    I don't think it sets TOO bad a precedent since FDR was able to mandate that anyone that has a job has to pay into Retirement Insurance (i.e., Social Security) and society hasn't crumbled since that happened. But I think it's definitely worthwhile for the Justices not to allow any overly broad precedent out of this case. Scalia's comments about buying broccoli seem somewhat appropriate in this case. Which is hilarious because he's the imbecile who once said "It says in my dictionary that bacteria are plants. So we should go with that definition."

    Anyway I guess we'll find out how it all goes in a few hours.

  4. I guess for me, this isn't the start of a slippery slope, it is near the bottom of one. In my opinion, this law has allowed congress to stick their fingers in many places it constitutionally doesn't belong, so for it to finally force you to go into a private contract just for breathing is the last straw, not the first.

    I have a problem with the growing percentage of people's money that the government feels it can put to better use. This would be just one more chunk that the government has control over.

  5. Sorry, I love when people talk about the government regulating their lives and how inappropriate it is. We should have received a public option, but we didn't. Additionally, we strip people of rights all the time. Take women, black men, immigrants (even the one who can show their papers upon request). But perhaps clearest are the poor, which I would be happy to launch in on, but that might be a bit much. I can tell you briefly that medical decisions for women on welfare go through their case workers, and no one cares about that.

    Scalia's a tool. How about anyone who wants to collect social security has to demonstrate they have had health care throughout their lives...you know the way bad insurance plans currently make poor people demonstrate their issue isn't a preexisting condition...sorry poor men, because "woman" is a preexisting condition.

    But it comes down to this for me, if the government (local, state, or federal) can pass laws on my health (read body) then why not everyone else?

  6. Kari, I have reread your comment multiple times and I am having trouble understanding what you are trying to say in your first part. I feel like you may have assumed that I have a very narrow window about what I think is inappropriate for the government to control. Namely, one that doesn't include the gov's oppression of marginalized people.

    I do care that medical decisions for women on welfare go through their case workers, and if that was the discussion that this entry encouraged I would have voiced my extreme displeasure about that.

    Secondly, I am not sure what you are trying to say about Scalia. Can you elaborate?

    My response to your last point (and I read it as saying every one else's health, I am sorry I if I misinterpreted it) is that I think it is despicable that the government passes laws that dictate women's health decisions. I just don't understand how, knowing full well the damage such things cause, you would then be willing to expose the entire population to that treatment? Either through the individual mandate or a public option/single payer system? Why not work to eliminate any government influence over the decisions we make with (or without) our physicians about our health? The gov and insurance companies already exert ENORMOUS control over our bodies and the services available to us via their reimbursement rates. All this stuff, the ACA, single payer, will do nothing to alleviate that, and could make it worse.

  7. Well, I guess I don't know what is confusing. This is an issue of privilege. When people (or companies) in a place of privilege feel their rights are being violated we have Supreme Court cases. Of course, you feel across the board that people should have complete and equal citizenship under law, but if that was true of all people in places of privilege then we wouldn't have these right violating laws in the first place, and we'd have the ERA. Because according to Scalia, I'm not protected by the Constitution.

    Which brings me to: Scalia, that was a joke, and well true because I don't like him or his opinions [see above]. Asking if everyone needs to join a health club? So a bad joke for a bad joke.

    To reference, a Ohio State Senator, if they care so much about women we should return the favor. She has suggested we regular men's reproductive health the way we do women. So arguably, if we infantilize some we should infantilize all.

    Finally, as women were told, be patient. Then we were told Obama care was the first step toward universal healthcare. In my opinion, there is more good in this than bad so I'm willing to swallow it. After all it goes down better than the Patriot Act, which was upheld in the Supreme Court.

    Now, I concede the initial reaction to this is going to be rough on the poor, but no rougher than being denied services in the first place. But it is my understanding they can have subsides, which is better than what they have now. So, back to privilege, who is this bad for again?

    A "precedent" and the slippery slope argument, the bane of my existence. There are already precedents, but they screw "minorities." For example: Welfare participants have to sign contracts giving away their rights, which leads us to the slippery slope: "Oh, no, the government might take away my right to selecting my employment, educating my children, the decisions about the food I eat, who can live in my house, and I'm going to had to tolerate personal questions about my sexuality, etc." Wait, no, they won't because I pay more taxes, so I count more.

    To summarize, no, I don't see to the way you do. I don't have a law degree, and I defer to the gents on this blog with them to set me straight if need be. But these overarching fears about "what if" stem from privilege, which has been creepily absent from discussions (not just here, but everywhere).

  8. My indignation and fear is not about privilege. This is just where the fight happens to be today. The poor were the first to lose their rights during this slow progression of soft tyranny since the New Deal. Their fate has already been decided in court. They have been forced to make a deal with the devil for a long time, and I am as vehemently opposed to the categorical nature of welfare as I am to the developments going on today.

    I have to admit, I really don't see how privilege has anything to do with this. You don't even know anything about my present or future economic situation. And of course people who are already on welfare don't wonder "what if my rights are taken away?" They already have been!

  9. Just to reiterate, for me personally, this is an issue of principle, not privilege.

    Also my use of "is" instead of "are" is really bothering me in the first sentence of my last response.

  10. The minimum coverage portion of the ACA is a great example of a lose/lose compromise.

    If I have time, I'll write up a post about this in the next few days. But basically, I fucking hate it. Forcing individuals to purchase a product offered by dividend-paying, for-profit companies with such a poor record of money management that they had an active role in destroying vast portions of the economy just five years ago is at best a corrupting and unstable solution to one of our country's most pressing problems. At worst, it's going to destroy the entire healthcare system without major government intervention along the lines of what happened during the financial crisis, at a cost of trillions of dollars and millions of lives over time. The insurance companies can't be trusted to not fuck this up.

    I may even agree that the mandate is unconstitutional, although, like I've said before, it seems a little silly that the commerce clause couldn't be stretched to cover this given everything else it covers. Bear in mind that it's almost completely impossible to not participate in the healthcare system in the US, and that the mandate is just a way of making sure everyone's already-guaranteed participation gets paid for. In other words, because everyone already participates in the healthcare system, the government has an obvious right to regulate that participation to make it more fair for everyone. Particularly since absolutely everyone agrees that the mandate would lower insurance costs across the board, which would give tens of millions more Americans access to healthcare. Kari's right that a lot of the opposition to the bill comes from a place of priviledge, from people who can afford insurance already.

    The ACA is also a lot larger than the insurance mandate – and I like many of the other parts of it, like standardizing the communications methods between different electronic medical records systems. That sounds small, but without the bill we'd be stuck in the current fucked up mode for years or decades. Imagine a worldwide ATM network where ATMs made by different companies could only talk to banks with software made by that company; that's how stupid the current system is. So regardless of what happens to the mandate, I'm hoping that the court doesn't strike down the rest of the law. At least in the case of electronic records standardization, even the gesture at forcing the industry to move in that direction has already caused major progress that will likely to continue regardless.

  11. Thank you guys for the debate, sorry I'm just catching up now.


    I think this comes down to a basic question of how you view freedom (and frankly, most of this discussion doesn't have much to do with the law or the supreme court decision), and of what you think is a human right.

    I believe that the right to high quality medical care is a human right. This may be where we differ, but it's an important point to distinguish.

    If you think it is a human right and something we should address, you are basically acknowledging that on some level you will be choosing some mechanism (government or market) to decide who deserves health care, and how it is paid for. The system we currently takes away the freedom to live for plenty of people , who through no doing of their own can't afford health care(I think this is Kari's point about privilege). It's important that this is acknowledged. A world without big government interfering into it, the marketis still picking winners and losers, and still granting the freedom to live to some while taking it away from others. In this world the freedom to live is given to those with money, and taken away from those without it.

    I won't bother defending Obamacare since you lumped it in with single payer, I'll defend the one I'm more comfortable with. With a single payer system, everyone has the freedom to live, because they have access to the basic healthcare that everyone needs to exercise the basic freedom of living. Yes, it will mean that taxes will be slightly higher on some (but if this is done in a progressive way, it won't be a burdern that people can't handle)(Also, many corporations would gladly pay more in taxes if it meant they no longer were responsible for health care costs). So if the loss of freedom in paying slightly more in taxes and having the government run something is too much, then I understand where we disagree. I also think this is an issue of freedom, just one related to the people who currently don't have the freedom to live a healthy life because of our health care system. And because I think health care is a human right, I think that freedom is more important.

    Sorry for the endless post, but I think it's an interesting debate and I wanted to get at what I think is the crux of this debate; whether freedom is the ability to live a life free of discrimination and live a healthy life (with the right to these things enforced by the government) or if freedom is the ability to be completely unrestrained from any governmental burden or regulation, and have the market choose those outcomes for you.

    At least that's how I see it, I'd be curious about your (or anyone's) thoughts.

  12. The issue of whether health care, more specifically professional medical services and goods, is a human right is certainly one place that we differ. In my opinion, the only human rights are the ones we are born with: dignity, autonomy, and justice under the law of the land. We are not born with a right to the goods and services of another.

    When I graduate, does that mean that everyone will have a right to my services? No it does not. As it happens, I have taken the Hippocratic oath and believe it is my duty to serve people whenever called upon. But what about the hospital administrators, what about the medical equipment suppliers? You have no more right to their labor or goods than you have to mine, and they did not necessarily enter their professions with the same goals and mindset that I have.

    I am not trying to say that things are great now and they should stay as they are, but I don't understand how you look at insurance companies and chalk it up to a market failure when the health industry is one of the most heavily regulated industries in the country! Another heavily regulated industry? Banking. But you blame these failures only on the market side of the equation, failing to take into account the government's role in these failures.

    You want everyone to have access to medical care. At what cost? You think our free markets have created losers and winners when it comes to medical care. Losers compared to what? You think the government is capable of running the medical care industry and averting the impending collapse of our medical care system. What hard evidence do you have to support that? The gov already accounts for 45% of the direct expenditure on health care in the United States. How much of the remaining 55% that was spent by businesses and households do you think was directly regulated and controlled by the government? I don't know but it is probably a significant proportion.

    Sorry for the rant, but what I am trying to point out is that we would not be moving from a market failure to a government success if you guys had your druthers, we would be moving from a quasi-government/market failure to a simple government failure.

    1. FYI I haven't forgot about you luke! There will be a response, it has just been a hellish few days, and I want to give it the time it deserves.

    2. Take your time, my friend! And when you get the chance check your facebook, sent you a message on there. <3

  13. Interesting comments on both sides everyone. I apologize for not commenting myself, I also won't be able to provide a write-up of the Day 3's discussions of Severability and the medicaid expansion b/c of insane deadlines tonight.

    But I want to note how important I think the severability arguments are in determining the constitutionality of the mandate. Even if they shouldn't be.

    Please read these excellent write-ups instead:

    1) Lyle Dennistons on Medicaid & Severability: http://www.scotusblog.com/2012/03/argument-recap-a-lift-for-the-mandate/ ; http://www.scotusblog.com/2012/03/argument-recap-will-medicaid-be-sacrificed/
    2) Summary of Arguments: http://www.scotusblog.com/2012/03/in-plain-english-is-half-a-loaf-better-than-no-loaf/ ; http://www.scotusblog.com/2012/03/the-argument-is-done-2/

    Also, I want to refocus the argument based on what Justice Breyer told both parties during the oral arguments -- The Court is not trying to determine whether or not it is a good bill or not. Nor do they want to make such a determination. But is such action allowed under either Article I 's Commerce clause, Congress's taxing power, etc.

    Ughhhhh -- this post doesn't really say what I want it to say, but that's all i can squeeze in for now.

    Tell you what -- If anyone has specific questions about the debate, args, etc? tweet me @Kid__rb, e-mail me, or leave them in the comments and I'll put up a post on Saturday to address them.

  14. Thanks for refocusing RB. This idea of severability, does this only come into consideration if the individual mandate is deemed unconstitutional? Or could the rest of the ACA sway the judges to make a different decision on the individual mandate than they would if it stood alone?