Diane Cohen

Day Two: The Individual Mandate

Posted on March 28, 2012 | Author: Diane Cohen
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As the Supreme Court considers President Obama’s healthcare law this week, Goldwater Institute Senior Attorney Diane Cohen will be your guide to the proceedings. Today, Diane is joined by Goldwater Institute attorney Christina Sandefur to recap Tuesday’s activities.

Yesterday the Court heard argument on the centerpiece of the President’s health care law – the individual mandate. At issue: Whether Congress exceeded its Commerce Clause authority when it enacted the mandate, which takes effect in 2014. Unprecedented in history, the individual mandate forces nearly every American to purchase government-approved health insurance.

One passage from Justice Kennedy best represents how the mandate was received by the conservative justices:
"Here the government is saying [it] has a duty to tell the individual citizen that it must act, 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."

Similarly, Justice Scalia noted during the argument that the mandate:
"…may be necessary, but it's not proper because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it's supposed to be a government of limited powers. And that's what all this questioning has been about. . . . If the government can do this ... what else can it not do? . . . If people don’t buy cars, the price that those who do buy cars pay will have to be higher. So, you could say in order to bring the price down, you’re hurting these other people by not buying a car."

Justice Alito also expressed skepticism that, under the government’s view of the Constitution, there is any limit to what Congress can require individuals to purchase “where the failure to purchase the product has a substantial effect on interstate commerce.”

Another key line of the conservative justices’ questioning focused on an apparent disconnect between what, according to the law, Congress said the mandate was supposed to fix – the costs incurred by society from the uninsureds’ use of uncompensated emergency care – and the actual scope and breadth of what the mandate actually regulates. The subject of many questions was the mandate’s extension beyond purportedly addressing the uninsured problem, to requiring Americans to buy one-size-fits-all preventive care coverage, including such absurdities as requiring men to purchase maternity coverage and people without children to purchase pediatric coverage.

As Justice Alito observed:
"[T]he CBO has estimated that the average premium for a single insurance policy in the non-group market would be roughly $5,800 in -- in 2016. . . . [E]conomists . . . estimate that a young, healthy individual targeted by the mandate on average consumes about $854 in health services each year. So the mandate is forcing these people to provide a huge subsidy to the insurance companies for other purposes that the act wishes to serve, but isn't -- if those figures are right, isn't it the case that what this mandate is really doing is not requiring the people who are subject to it to pay for the services that they are going to consume? It is requiring them to subsidize services that will be received by somebody else."

While we can’t predict how the justices will vote, we now have long-awaited insight as to what they are thinking.

Wednesday, the final day of argument, the Court will consider the severability issue, which addresses whether, in the event the mandate is found unconstitutional, all or some of the Act must be stricken as well.

The Court will conclude by hearing argument on the Medicaid expansion issue, which addresses whether the law coerces the states into accepting onerous conditions on Medicaid, the nation's single largest grant-in-aid program.

Stay tuned.

Learn more:

Supreme Court of the United States: Audio of Tuesday's Oral Arguments

CBS News DC: ‘You Can Make People Buy Broccoli’: Scalia Goes After Health Care Law

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