WASHINGTON -- Solicitor Gen. Donald Verrilli Jr., representing the government, makes his opening statement, arguing that insurance has become the predominant way that Americans pay for healthcare. But Verrilli argues the system is broken because people who cannot purchase insurance that is subsidized through their employers, or are not eligible for programs such as Medicare or Medicaid, cannot afford to pay for it on the private market.
Verrilli asserts it is an economic problem that the healthcare law addresses by bringing reforms to the insurance market for individuals, all of whom will need medical services at some point in their lives.
Justice Stephen G. Breyer seemingly tries to assist Verrilli and strengthen his argument on how the law is constitutional under the powers of the Commerce Clause.
JUSTICE BREYER: Justice Kennedy asked, can you, under the Commerce Clause, Congress create commerce where previously none existed. Well, yes, I thought the answer to that was, since McCulloch vs. Maryland, when the court said Congress could create the Bank of the United States, which did not previously exist, which job was to create commerce that did not previously exist, since that time the answer has been yes.
Justice Stephen Breyer by Los Angeles Times
Justice Anthony M. Kennedy, who is considered a swing vote in the case, pursues an aggressive line of questioning of Verrilli, asking whether government is headed down a slippery slope by requiring people to purchase health insurance. Kennedy challenges Verrilli on whether he believes the federal government sees any limits on what can be required under the Commerce Clause.
Chief Justice John G. Roberts Jr. chimes in and questions whether requiring citizens to purchase health insurance is really any different from requiring them to purchase an automobile or broccoli.
JUSTICE KENNEDY: 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?
Justice Ruth Bader Ginsburg, a liberal justice expected to support the law, raises the issue of damages made to others by those who do not buy health insurance, highlighting one of the major points in his case.
Ginsburg argues that those who do not buy health insurance are driving up the price of premiums for those who do, simply because the uninsured get sick and require services, and those costs ultimately have a major impact on the price of health insurance, shifting an unfair burden onto those who bought insurance.
JUSTICE GINSBURG: The people who don’t participate in this market are making it …
Justice Ruth Bader Ginsburg by Los Angeles Times
Justice Antonin Scalia makes one of the strongest statements of the session, raising the issue of whether the insurance mandate will snowball into greater governmental controls in the future. Scalia argues that the government should have limited powers, and if this is allowed, what else can the government do?
JUSTICE SCALIA: The argument here is that this also is -- may be necessary, but it's not proper because it violates an equally evident principle in the Constitution …
Justice Antonin Scalia by Los Angeles Times
Justice Kennedy takes a critical stance on the healthcare law by reflecting on the nature of tort law. Kennedy questions whether the government can force a person to do an "affirmative act."
Verrilli disagrees, arguing that people already participate in the healthcare market for services, whether they are insured or not, and the law simply regulates the participation.
JUSTICE KENNEDY: But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts, our tradition, our law, has been that you don't have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that's generally the rule.
Justice Breyer presents a scenario in which it may be necessary for the government to mandate a certain sort of healthcare, which turns into a debate as to the degree to which “noneconomic” activity falls under the domain of the Commerce Clause.
Breyer asks whether it would be proper for the federal government to require its citizens to be immunized against a health epidemic sweeping the nation. Michael Carvin, an attorney arguing against the healthcare law, tells Breyer the government could not require such measures.
JUSTICE BREYER: I'm just picking on something. I'd like to just -- if it turned out there was some terrible epidemic sweeping the United States, and we couldn't say that more than 40 or 50 percent …
Justice Samuel A. Alito Jr. brings up the possibility that the mandate itself shifts costs illogically, and in doing so commits the very same offense it’s seeking to remedy.
Alito says the reason that insured people absorb the costs of the uninsured is because the government has required hospitals to treat people who lack insurance, and instead of paying for it with a tax on everyone it has allowed the cost of uncompensated care to be shifted to those who buy health insurance.
JUSTICE ALITO: Mr. Carvin, isn't there this difference between Justice Breyer's hypothetical and the law that we have before us here?
Justice Sonia Sotomayor addresses government’s role in on economic activities, and how it pertains to health costs, which Carvin tackles from the way in which state and federal compulsions interact.
Sotomayor argues that the government routinely compels economic activity similar to the purchase of health insurance.
JUSTICE SOTOMAYOR: That’s true of almost every product.
The distinctions between inactive versus active participation in markets, and the divides that would have to be established between health insurance and other industries in regard to the jurisdiction of the Commerce Clause, are discussed between Justice Elena Kagan and Carvin.
JUSTICE KAGAN: Mr. Carvin, a large part of this argument has concerned the question of whether certain kinds of people are active participants in a market or not active participants in a market. And your test, which is a test that focuses on this activity/inactivity distinction, would force one to confront that problem all the time.