PPACA Round Two: The Individual Mandate Under Fire

Memorandum: Tuesday was a really tough day for Solicitor General Verrilli Jr.

Tuesday’s questions  about the individual insurance requirement underpinning the Obama administration‘s health care reform legislation were bold and focused.  As Justice Anthony Kennedy expressed it, the arguments heard at the US Supreme Court were asking whether or not the mandate for every American to have or purchase health insurance ‘is a step beyond what our cases allow’.

At the same time, however, Justice Kennedy, who often casts a swing vote on issues that have the other justices at odds along ideological lines, admitted that he recognized the vast scope of our nation’s health care crisis.  Perhaps a sweeping solution is, in fact, the only way to go.  The question is, of course,  just which sweeping solution will do the trick.

As we noted yesterday, the number one issue, repeatedly returned to during yesterday’s debates, is simple: can the government force people to purchase health insurance?  If yes, what is to prevent us from being forced to buy other goods and services?  As Chief Justice John Roberts said: “Purchase insurance in this case, something else in the next case”.  Justice Antonin Scalia wondered “If the government can do this, what else can it not do?”.

Chief Justice Roberts also acknowledged some of the unique aspects of health care.  Nearly everyone uses it at some point along the way.  “Everybody is in this market, so that makes it very different than the market for cars or the other hypotheticals that you came up with, and all they’re regulating is how you pay for it,”  Roberts commented, as he summed up the government’s case.

Justice Scalia remained firm throughout on the limits of the federal government’s powers, as established by the Constitution — the rest of the powers belong to the states and the people: “The argument there is that the people were left to decide whether to buy health insurance”.  Period.

On its side, the Obama administration suggests that insurers will be able to afford to take care of older, sicker people without risking financial devastation because the mandate, the insurance-for-one-and-all requirement, will provide those insurers with enough premium dollars from the healthy to cover the higher costs of the sick and suffering.  And Solicitor General Verrilli defended the law, noting that without health insurance, “you’re going to the market without the ability to pay for what you’re going to get”.

Day three is to be about severability – whether or not taking out the mandate portion of the reform legislation nullifies the whole overhaul.

One thing bears mentioning, here.  We buy comprehensive health care insurance, hoping against hope that we will not need the extensive testing and specialists, organ transplants or radical cancer treatments it will pay for should we need those therapies.  We don’t want the failed heart or liver, or the malignancy, for ourselves or our loved ones – but again, that’s not why we secure coverage.  We buy it because we want to maintain as much of our way of life as possible, when and if we become seriously ill.  We have no control whatsoever over the ever-rising costs of health care; most of us would run through any savings in a matter of days.  We can help offset the risks of illness with lifestyle choices and sensible personal health regimens, but we cannot predict if and when a serious condition will develop.  Those crystal balls are fun, but not foolproof.  And simply being under thirty is no guarantee of health, either.

Again, we will keep you posted.  For sure it won’t be dull in the courtroom today!


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