The United States Supreme Court heard arguments regarding the Affordable Care Act on Tuesday, which is an individual mandate that might not have a future. The argument in favor of the government was issued by U.S. Solicitor General Donald Verrilli, whose argument started with a series of coughs, which was out of the box for the typically calm and collected Verrilli. As Verrilli was regaining his form, Justice Anthony Kennedy asked him a question, according to the Washington Post and the Huffington Post.
“Can you create commerce in order to regulate it?” The questions were thrown at Verrilli for almost an hour until he sat back down in his seat. Conservative justices in the court are worried that if the mandate is upheld then Congress would be allowed to regulate almost anything that they feel is a problem in the nation. It was then argued by Verrilli that the market for health care has features that Congress can require uninsured people to purchase health insurance policies.
“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, virtually everybody else is either in that market or will be in that market,” Verrilli said. “People cannot generally control when they enter that market.”
The response to the Verrilli statement was issued by Chief Justice John Roberts, who said, “The same, it seems to me, would be true, say, for the market in emergency services: police, fire, ambulance, roadside assistance, whatever.”
“With respect to what insurance has to cover, your honor, I think Congress is entitled the latitude of making the judgments of what the appropriate scope of coverage is. And the problem here in this market is that … you may think you’re perfectly healthy and you may think … that you’re being forced to subsidize somebody else, but this is not a market in which you can say that there is an immutable class of healthy people who are being forced to subsidize the unhealthy. This is a market in which you may be healthy one day and you may be a very unhealthy participant in that market the next day and that is a fundamental difference,” Verrilli said.
Paul Clement, a former United States solicitor general, argued in favor of the 26 states that are challenging the mandate. Clement seemed to succeed during his arguments, answering with ease the questions from the liberal judges of the court.
“The mandate represents an unprecedented effort by Congress to compel individuals to enter commerce in order to better regulate commerce,” Clement stated.
Justice Elena Kagan said, “Congress surely has within its authority to decide, rather than at the point of sale, given an insurance-based mechanism, it makes sense to regulate it earlier. It’s just a matter of timing.”
Clement responded to Kagan’s statement with the following: “Well, Justice Kagan, we don’t think it’s a matter of timing alone, and we think it has very substantive effects. Because if Congress tried to regulate at the point of sale, the one group that it wouldn’t capture at all are the people who don’t want to purchase health insurance and also have no plans of using health care services in the near term. And Congress very much wanted to capture those people. I mean, those people are essentially the golden geese that pay for the entire lowering of the premium.”