Day 2 at the Supreme Court: Individual Mandate and the 'Broccoli Possibility'

Disclosures

March 27, 2012

March 27, 2012 (Washington, DC) — Attorneys for the Obama administration and opponents of the Affordable Care Act (ACA) squared off in the Supreme Court this morning over the law's most controversial provision: the mandate to obtain health insurance coverage or pay a penalty.

In the second day of oral arguments in the case, US Solicitor General Donald Verrilli Jr, the attorney for the government, told the justices that the ACA merely regulates the timing of how Americans purchase healthcare. The mandate, Verrilli said, is perfectly acceptable under the Constitution's Commerce clause, which empowers lawmakers to regulate commerce.

Attorneys for officials from 26 states and the National Federation of Independent Business (NFIB), which are challenging the ACA, described the mandate in more dire terms, saying it is unprecedented and unconstitutional for Congress to compel someone to buy something, or do something, and to penalize them for inactivity.

Justice Stephen Breyer

Justice Stephen Breyer today called that scenario of unlimited federal power, as opposed to limited federal powers spelled out in the Constitution, "the broccoli possibility." That phrase refers to the argument that the individual mandate could open the doors for Congress to require Americans to eat broccoli.

The humor of a broccoli mandate aside, Justice Anthony Kennedy said the case has momentous implications.

Justice Anthony Kennedy

"Here the government is saying that the federal government has a duty to tell the individual citizen that it must act," said Kennedy, "and that is different from what we have in previous cases, and that changes the relationship of the federal government to the individual in a very fundamental way."

"Can You Create Commerce in Order to Regulate It?"

The arguments on each side of the legal battle are familiar ones. What was different today was how the high court justices forced the attorneys to defend their positions from their opponents' strongest attacks. Within a few minutes of Verrilli's presentation, Justice Anthony Kennedy asked him point blank, "Can you create commerce in order to regulate it?"

US Solicitor General Donald Verrilli Jr

Verrilli replied that the ACA does not create commerce but, rather, regulates an existing healthcare marketplace that at one time or the other encompasses everyone, whether they like it or not.

The healthcare market cries out for regulation, Verrilli said, because the cost of the uncompensated care received by the uninsured (put at $43 billion/year) is shifted to the public in terms of higher insurance premiums. The mandate cures that problem, he said.

The mandate also makes it feasible to require private insurers under the ACA to guarantee everyone coverage and to base premiums on "community rating"; that is, on age, geographic area, family size, and tobacco use, but not on preexisting conditions. Otherwise, Americans could wait until they were ill before they purchased coverage. This "adverse selection" of sick and expensive insurees would force insurers to raise premiums for a shrinking number of customers, which Verrilli said would wreck the private insurance industry. In contrast, the mandate puts healthy and sick people alike in the insurance risk pool.

Verrilli noted that his opponents in the case concede that Congress has the power to regulate the purchase of healthcare at the point of sale. What the ACA does is require advance purchase of something people inevitably need at some unknown point. Such a requirement, he said, does not create a precedent for mandates to buy cars or cell phones.

Justice Samuel Alito Jr

Several justices pounded on Verrilli's argument that Congress can regulate the healthcare market because everyone is in it. Justice Samuel Alito Jr asked why the government should not require everyone, including the young and healthy, to obtain burial insurance.

"Most people are going to need healthcare," said Alito. "Almost everybody. Everybody is going to be buried or cremated at some point. What's the difference?"

Verrilli replied that the burial industry is not plagued by billions of dollars in cost shifting.

Activity vs Inactivity

Paul Clement, the attorney for the 26 state officials, and attorney Michael Carvin, representing the NFIB, also came in for sharp questioning from the justices.

Paul Clement

Clement, who was a solicitor general in the George W. Bush administration, said that the individuals improperly compelled to purchase healthcare coverage are largely the young and healthy, who will subsidize the cost of caring for sicker Americans. "Those people are essentially the golden geese that pay for the entire lowering of the premium," said Clement. His ally, Michael Carvin, said this forced subsidy was a "fundamental problem" with the law.

Justice Ruth Bader Ginsburg suggested that societal subsidies in themselves have passed Constitutional muster — witness the Social Security program created during the Roosevelt administration. The government began taxing everyone so that the elderly could get a check in the mail.

Justice Ruth Bader Ginsburg

"It was a big fuss about that in the beginning because a lot of people said...they're forcing me to paying for this Social Security that I don't want," said Ginsburg. "But that's constitutional."

Ginsburg asked Clement whether he was arguing that, given his opposition to the ACA's reforms of the private insurance market, the only permissible form of subsidizing healthcare was through a taxpayer-funded government program: "a government takeover."

"No," said Clement. "There are other options available."

Michael Carvin, attorney for the NFIB

For his part, Carvin continued to hammer home the point that the ACA oversteps Congress' Commerce clause authority by compelling inactive individuals to engage in commerce. He dismissed the notion that everyone is automatically an active participant in the healthcare marketplace.

"If being born is entering the market, then I can't think of a more plenary power Congress can have, because that literally means they can regulate every human activity from cradle to grave," said Carvin.

Justice Alito asked Carvin if distinguishing between "activity" and "inactivity" is just as artificial as distinguishing between "commerce" and "manufacturing," which the high court once did, but no longer does.

"The words 'inactivity' and 'activity' are not in the Constitution," replied Carvin. "The words 'commerce' and 'noncommerce' are."

Oral arguments in the landmark case began yesterday, with the court focusing on whether a tax law called the Anti-Injunction Act bars consideration of the ACA until 2015, when the Internal Revenue Service begins assessing a penalty for not complying with the individual mandate. The high court wraps up its oral arguments on the ACA case tomorrow with a morning session on whether striking down the individual mandate means the entire law must be voided, and an afternoon session on the constitutionality of Medicaid expansion under the law. The justices will issue a ruling sometime before July.

"Mandate Hangs in the Balance"

Today's proceedings suggest to healthcare-law expert Lawrence Gostin that a majority of the high-court justices could vote to strike down the individual mandate.

"I went into the hearing thinking the justices might uphold the mandate 7 to 2," said Gostin, faculty director of the Center for Law and the Public's Health at Georgetown University in Washington, DC. "Now I think mandate hangs in the balance."

The court's 5 conservative members — Justices Scalia, Alito, Kennedy, John Roberts Jr, and Clarence Thomas, who did not ask any questions today — strike Gostin as a solid front against the mandate. "They really didn't give any indication other than skepticism," Gostin told Medscape Medical News. He called their questions to Verrilli "dogged and determined."

Kennedy, the court's reputed swing vote, "didn't indicate he might support the mandate," said Gostin. Rather, Kennedy baldly stated that the requirement could change the relationship between the federal government and the individual "in a very fundamental way," Gostin noted.

In contrast, "it's very clear that the 4 liberal judges (Justices Ginsburg, Breyer, Sonia Sotomayor, and Elena Kagan) would support it."

Gostin now envisions the possibility of a 5 to 4 vote striking down the mandate.

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