Justices search other areas of commerce to frame individual mandate
Day two of hearings at the Supreme Court yesterday found the justices pressing the federal government's case by searching for analogies in a host of other industries – ranging from burial services and telecommunications to food and emergency services – in order to better understand the nature of the individual mandate.
And while the analogies may have been strained at times, the intent was clear: to determine whether or not healthcare and health insurance represent a unique market compared to other industries and thus open to federal regulation via the requirement that everyone buy health insurance.
Some selected excerpts from yesterday's arguments:
Justice Samuel Alito: Do you think there is a, a market for burial services?
U.S. Solicitor General Donald B. Verrilli Jr.: Yes, Justice Alito, I think there is.
Alito: All right, suppose that you and I walked around downtown Washington at lunch hour and we found a couple of healthy young people and we stopped them and we said, "You know what you're doing? You are financing your burial services right now because eventually you're going to die, and somebody is going to have to pay for it, and if you don't have burial insurance and you haven't saved money for it, you're going to shift the cost to somebody else."
Isn't that a very artificial way of talking about what somebody is doing? …And if that's true, why isn't it equally artificial to say that somebody who is doing absolutely nothing about healthcare is financing healthcare services?
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Verrilli: The healthcare market is characterized by the fact that…virtually everybody…is either in that market or will be in that market, and the distinguishing feature of that is that they cannot, people cannot generally control when they enter that market or what they need when they enter that market.
Chief Justice John Roberts: Well, the same, it seems to me, would be true say for the market in emergency services: police, fire, ambulance, roadside assistance, whatever. You don't know when you're going to need it; you're not sure that you will.
But the same is true for healthcare. You don't know if you're going to need a heart transplant or if you ever will. So there is a market there. To – in some extent, we all participate in it. So can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? You can just dial 911 no matter where you are?
Verrilli: No, Mr. Chief Justice. I think that's different. I don't think we think of that as a market. This is a market. This is market regulation.
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Justice Antonin Scalia: Could you define the market -- everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.
Verrilli: No, that's quite different. The food market, while it shares that trait that everybody's in it, it is not a market in which your participation is often unpredictable and often involuntary. It is not a market in which you often don't know before you go in what you need, and it is not a market in which, if you go in and seek to obtain a product or service, you will get it even if you can't pay for it.
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Attorney Michael Carvin: It is clear that the failure to buy health insurance doesn't affect anyone. Defaulting on your payments to your health care provider does. Congress chose for whatever reason not to regulate the harmful activity of defaulting on your healthcare provider. They used the 20 percent or whoever among the uninsured as a leverage to regulate the 100 percent of the uninsured.
Kennedy: I agree that that's what's happening here…And the government tells us that's because the insurance market is unique. And in the next case, it'll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and healt care world, both markets -- stipulate two markets -- the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That's my concern in the case.
