Health Care Challenge: Day One Review

Memorandum: What happens next?

Yesterday, the US Supreme Court began hearing arguments on the big question: may the federal government compel individuals not engaged in commerce to  purchase a product (in this case, it’s health insurance) from private companies?  Uninsured Americans are estimated to use about $43 billion of health care each year, care for which they cannot pay.  Solicitor General Donald B. Verrilli Jr. estimates that those costs are transferred to other Americans, at roughly $1,000 per year per family.

The law’s challengers, some 26 states, led by Florida, several individuals and the National Federation of Independent Business, couch their opposition in terms of individual liberty.  The Obama administration is asking the court to see the mandate — requiring all individuals to carry health insurance —  in a different light.  They argue that the plan, which is called ‘the minimum coverage provision’ by its authors,  is designed as an appropriate and timely response to a national health care crisis.  In their opinion, Congress has the right, perhaps even the duty, to organize and regulate how individuals pay for the health care they will almost certainly need at some point in their lives.

There are two provisions in the US Constitution, along with the various precedents that interpret those provisions, in play here.  Remember that the Constitution gives the federal government some specified powers, leaving the rest to the states and to the people.  The two specified powers here (Article I, Section 8) involve the imposition of taxes and the regulation of interstate commerce.

The Obama administration is arguing that the commerce clause, which gives Congress the power to regulate commerce ‘among the several states’, is the authority for the health care law.  In the past, the Supreme Court has generally interpreted the clause broadly, allowing federal regulation.  In the case of the health care law, however, a decision from the US Court of Appeals for the 11th Circuit, in Atlanta, argues that the health care law is overstepping the limits of the commerce clause by regulating inactivity, and also forcing people into the marketplace, into buying something they may not want or even need.  The federal government has also brought the Congressional power to levy taxes into the fray, claiming this as another authorizing power.  This, however,  ended up as something of a nonissue by the end of yesterday’s session.

From one side, we hear Solicitor General Verrilli Jr:

The minimum coverage provision is within Congress’s power to enact not only because it is a necessary component of a broader scheme of interstate regulation, but also because, within that scheme, the provision itself regulates economic conduct with a substantial effect on interstate commerce, namely the way in which individuals finance their participation in the health care market.

From the other side, we have Paul D. Clement, representing the 26 challenging states.  For him, this way of looking at federal power adds up to ‘a revolution in the relationship between the central government and the governed’.  Further,

If this is to remain a system of limited and enumerated federal powers that respects individual liberty, accountability and the residual dignity and sovereignty of the states, the individual mandate cannot stand.

And there we have it.  The arguments will continue this week, with SRO attendance, by the way,  but no decision is expected until mid-June or later.  As always, we will keep you posted!

Special thanks NY Times.


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