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Insurance Mandate A Tough Sell At Supreme Court

Above: People participate in a protest on the second day of oral arguments for the Patient Protection and Affordable Care Act in front of the U.S. Supreme Court building on March 27, 2012 in Washington, DC.

KPBS Evening Edition

Glenn Smith, Constitutional Law

Glenn Smith, a Constitutional Law Professor, talks to Joanne Faryon about the Supreme Court's deliberations on the health care reform law.

Aired 3/27/12 on KPBS Midday Edition.

Glenn Smith, Professor of Constitutional Law, California Western School of Law


Scheduled Arguments

March 26: Anti-Injunction Act

An 1867 law raises the question: Does the Supreme Court have the right to hear this case right now? (90 min.)

Day 1 audio + transcript

March 27: Individual Mandate

The court will consider the question: Does Congress have the authority to compel people to buy health insurance? (2 hours)

March 28: Severability

If the court strikes down one part of the law, such as the individual mandate, does the whole law become invalid? If not, are there other parts that are inextricably linked that would have to be struck down as well? (90 min.)

March 28: Medicaid

The court hears arguments on requiring states to expand their Medicaid programs. (1 hour)

Read More: Nina Totenberg's legal primer on the issues before the court.

Today's arguments hit the core of the Affordable Care Act: the mandate that requires just about everyone to have health insurance starting in 2014.

And the U.S. Supreme Court's justices appeared split on whether the federal government can force people to buy health insurance. The court's conservatives appeared skeptical and unmoved by the government's arguments in favor of the mandate.

"Three of the conservatives are clearly going to vote to strike it down — that would be justices Scalia, Alito and Thomas," NPR's Nina Totenberg reports from outside the court.

Overall, "the government had a hard time, and if they win, they win narrowly," Totenberg says. "I don't think you can call this."

The law says that if you're not covered by Medicare, Medicaid or insurance provided by your employer, then you'll have to pony up for coverage on your own or pay a fine.

Those challenging the law say the federal government is going way too far with the mandate. This, they say, is the first time the government is making people buy a commercial product they may not want. That's a huge overreach, they contend.

Just take a look at the very start of the brief filed by Paul Clement, the legal wunderkind who is leading the challenge by 26 states to the overhaul law:

The individual mandate rests on a claim of federal power that is both unprecedented and unbounded: the power to compel individuals to engage in commerce in order more effectively to regulate commerce. This asserted power does not exist.

After Clement finished his arguments along those lines, SCOTUSblog's Tom Goldstein left the courtroom to file an update saying, "The individual mandate is in trouble — significant trouble. It's too early to tell whether it will be struck down."

Still, it's clear that the court's conservative justices are "quite skeptical." And Goldstein said, "Paul Clement gave the best argument of any kind that I've ever heard."

In Tuesday's arguments, Solicitor General Donald B. Verrilli Jr. was first up, and he got his fill of tough questions.

Justice Anthony Kennedy, often a swing vote, pressed Verrilli with questions about the mandate and what limits there might be on the federal government's power to compel people to do certain things, such as buy particular foods.

Kennedy said the government faces a "very heavy burden of justification" for the mandate, The Wall Street Journal's Louise Radnofsky reported during the arguments.

Verrilli says that with the overhaul, Congress is regulating people's participation in the existing market for health care, not treading in brand-new territory. Liberal justices Ruth Bader Ginsburg and Stephen Breyer appeared to back him up on that.

But conservative justices remained skeptical. If the court lets the mandate stand, it may be difficult to limit what Congress can do on other fronts, Chief Justice John Roberts said, according to the Journal's Brent Kendall. "All bets are off," Roberts reportedly said.

At one point, according to the Journal, Justice Samuel Alito asked Verrilli, "Could you express your limiting principle as succinctly as you possibly can?"

As things stand now, about 26 million uninsured people in the U.S. could be subject to the mandate, according to an analysis by the Urban Institute released Monday. But about 8 million of them would be eligible for Medicaid or health insurance programs for kids that wouldn't cost them much, if anything. Nearly 11 million would be eligible for subsidies under the law. And only about 7 million people would be subject to the mandate and not get some help paying for coverage.

The so-called individual mandate aims to make health insurance nearly universal. With just about everyone in the health insurance pool, the financial risks would spread out among a lot more people.

Supporters of the mandate say those economics are essential to making other changes under the health law, such as a ban on insurers discriminating against people with pre-existing medical conditions. Near-universal coverage would also help make possible a requirement that insurance companies generally charge about the same amount for people who are about the same age.

In briefs and during Tuesday's arguments, the government has countered that health care represents a unique market. Everyone at some point will get health care. The real questions are when they will get it, and who pays for it?

The mandate, say the supporters, is the best way to make sure that everyone pays his or her fair share. As former Clinton administration Solicitor General Walter Dellinger put it to Totenberg before the arguments:

Look, if I don't buy a flat-screen television, and my team is playing for the national championship, I don't get to run into Best Buy and say, 'You gotta give me a flat screen television.' But I do get to go to a hospital when I'm sick and have people provide me with services.

What's more, the federal government has argued that the law falls well within its constitutional powers to regulate commerce and to levy taxes. While lower courts have split, one conservative appeals court judge wrote last year in an opinion that went the administration's way:

Regulating how citizens pay for what they already receive (health care), never quite know when they will need, and in the case of severe illnesses or emergencies generally will not be able to afford, has few (if any) parallels in modern life. Not every intrusive law is an unconstitutionally intrusive law.

In a few months we'll learn how many — or how few — of the justices see it that way.

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Avatar for user 'Peking_Duck_SD'

Peking_Duck_SD | March 27, 2012 at 11:34 a.m. ― 5 years ago

I find it reprehensibly unprofessional and inappropriate that activist Justice Clarence Thomas did not recuse himself from this case.

His wife is an activist very involved in campaigning against the health care legislation, and Justice Thomas himself has spoken at events for organizations that oppose this bill.

How does one reconcile this bias and still move forward with voting on this critical measure?

Other justices like Ginsburg and Kagan have recused themselves from cases where they had far less conflict of interest than Justice Thomas does here.

Justice Thomas is quite frankly an unsult to the high court and a perfect example of what a Supreme Court Justice should **not** be.

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Avatar for user 'Peking_Duck_SD'

Peking_Duck_SD | March 27, 2012 at 11:37 a.m. ― 5 years ago

**Hopefully Justice Kennedey or even Justice Roberts will be the voice of reason here.**

The public is already quite aware of how partisan and disgusting Scalia, Alito, and Thomas are!

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Avatar for user 'normanbr'

normanbr | March 27, 2012 at 12:25 p.m. ― 5 years ago

What is the difference between the States REQUIRING individuals to purchase car insurance and the Federal government requiring individuals to purchase health insurance?

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Avatar for user 'benz72'

benz72 | March 27, 2012 at 1:50 p.m. ― 5 years ago

Not everyone is required to purchase car insurance. Specifically, those who choose not to drive a free not to pay for that unwanted insurance.

As an analogy, a similar freedom should be left intact for citizens who choose not to purchase health insurance. Just require it, or cash payment, before receiving services.

It is like helmet laws, or smoking... everybody knows the risks, but as adults, we should be free to take responsibility for our decisions.

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Avatar for user 'benz72'

benz72 | March 27, 2012 at 2:07 p.m. ― 5 years ago

PDSD "How does one reconcile this bias and still move forward with voting on this critical measure?"

As a guess, if someone sees this case as such as adressing such a clearly immoral issue as forcing purchases for another's benefit then there wouldn't be any conflict.

Judges who speak out against the crime of murder are still permitted to preside over trials of suspects accused of that crime, aren't they?

That said, I see your point. Too bad, as I was hoping this would get shot down in flames by a wide margin.

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Avatar for user 'CaliforniaDefender'

CaliforniaDefender | March 27, 2012 at 3 p.m. ― 5 years ago

While I agree with the basis of the law, the US Government should not be authoritative voice on this issue.

This is clearly an issue for each state to decide. If we permit the US Government to mandate the purchase of health insurance (a commercial service), there is no limit to what they can mandate in the future. Washington will legally be able to mandate what foods we must eat, what clothes we must wear, what cars we must drive, what houses we must live in...and heavily fine us if we disobey.

This one more step (and a big one) by the US Government to reduce state and personal liberty.

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Avatar for user 'benz72'

benz72 | March 27, 2012 at 3:03 p.m. ― 5 years ago

CD, why do you see it as a violation o personal liberty for the federal government to impose this but not for a state to do so? It seems equally intrusive to personal liberty to me.

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Avatar for user 'CaliforniaDefender'

CaliforniaDefender | March 27, 2012 at 5:37 p.m. ― 5 years ago


It is still intrusive, but not equally. California is a unitary republic, thus all power is concentrated in Sacramento. I would prefer that California become a federal republic which would give more authority to regions as the smaller the number of governed citizens and the closer they are to the seat of power, the greater their liberty.

But as it stands now the California Constitution is the highest authority on all issues not addressed in the US Constitution per the Bill of Rights:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

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Avatar for user 'Peking_Duck_SD'

Peking_Duck_SD | March 27, 2012 at 7:09 p.m. ― 5 years ago

How does one choose not to be involved in the health care marketplace?

Unlike driving a car, you don't make a choice omhave a body or not.

You also cannot predict when you will need a doctor.

And by not carrying health insurance, you are inflicting damage on others by driving cost s up and using medical services that go unpaid and tax payers eventually get the bill.

We are all part of the healthcare marketplace by default, and the constitution allows federal control of the marketplace via the commerce clause.

The ridiculous example Scalia gave about the government forcing you to buy broccoli ia a stupid analogy. Yes everyone eats, and the government ** does** regulate food, via the FDA. All the government is saying here is you need to purchase insurance, they aren't mandating you buy a specifc yep from a specific company making the broccoli comparison void of logic.

Constitutional freedoms come with caveats when they infringe on the liberties of others. This is why free speech does not include running into a crowded theater yelling fire knowing there is no fire, because it causes the freedom of others to be disrupted,

Those without insurance infringe on the liberties of the rest of us by driving up costs and walking around as very expensive societal liabilities.

The government is certainly within its constitutional rights to mandate health insurance for all as long as they supplement for those who can't afford to buy it.

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Avatar for user 'benz72'

benz72 | March 28, 2012 at 10:50 a.m. ― 5 years ago

PDSD, there are certain religions that forbid adherents to seek medical care. While I think that idea is loopy, it does point out that seeking care is a choice some consider reasonable. There are also persons who believe they have reached their end of life and reject medical treatment for what they consider to be well founded reasons. In each of those instances, one may choose not to be part of the healthcare marketplace.
I’d further like to point out that your correct conclusion about the uninsured driving up costs for others relies on the assumption that we should continue to force hospitals to give away valuable care for free.
If you really want to make people buy insurance, incentivize them to do so by not offering to pay for their poor judgment in neglecting it in the first place. We are enabling this whole problem and the simplest answer is to cease doing so.

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Avatar for user 'DeLaRick'

DeLaRick | March 28, 2012 at 12:29 p.m. ― 5 years ago

Discontinuing access to emergency care, i.e. Hill-Burton, would result in hospitals becoming war zones. All bets would be off once people began dying in hospital parking lots as a result of being denied treatment. That's a non-starter. There are plenty of imaginitive ways to solve the health care problem. Too bad we have politicians trying to solve it. Also, keep in mind that the insurance companies only signed-off on the ACA's popular provisions because of the individual mandate. UnitedHealth Group, Wellpoint and Cigna are not non-profits.

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Avatar for user 'benz72'

benz72 | March 28, 2012 at 3:07 p.m. ― 5 years ago

Why would you suspect a hospital parking lot would become a war zone? Do you not see the reasonable response being 'wow, I'd better find a way to get insurance' rather than 'I don't have insurance and I'm injured, I think I'll engage in combat'?

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Avatar for user 'Studying_Nomad'

Studying_Nomad | March 28, 2012 at 3:55 p.m. ― 5 years ago

Benz72 -

Money? Desperation? Fear? Survival? Theoretically I agree with you, but there is a difference between human emotion and theory about human behavior based on reason.

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Avatar for user 'benz72'

benz72 | March 28, 2012 at 4:21 p.m. ― 5 years ago

OK, let's not use theory. Are there hospitals that require payment we can look at to test the prediction? If so, do their parking lots resemble war zones?

The whole point is that the survival instinct would drive people to get insurance. That's what we were looking for anyway. And if someone chooses NOT to prepare for their inevitable need for medical attention... should we reward that behavior?

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Avatar for user 'Studying_Nomad'

Studying_Nomad | March 28, 2012 at 4:42 p.m. ― 5 years ago

There are many hospitals that require payment, but that doesn't mean one has to pay the bill, and the hospital has no choice but to give you some level of service. I'm a healthy person, but I have a friend who had cancer and never paid any of the bills. She said it doesn't affect your credit like other debts. But someone is paying that bill, whether it's our increased insurance premiums, higher hospital costs, or tax payer money. Not to mention all of the homeless people that receive medical care. I’ve watched many of a homeless person being carted away in an ambulance (I live downtown).

I picture your scenario as the way it works at the vet - no money no service.

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Avatar for user 'benz72'

benz72 | March 29, 2012 at 6:58 a.m. ― 5 years ago

That is (mostly) the way I picture it too. No ability to pay (either by cash on hand, line of credit or insurance coverage) no service. That is the nature of responsibility. Demanding people take responsibility for planning to cover their own health care doesn’t seem unfair or unrealistic to me at all. Does it to you for some reason?

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Avatar for user 'Studying_Nomad'

Studying_Nomad | March 29, 2012 at 11:08 a.m. ― 5 years ago

I’m not sure how to answer that question. My mind agrees, but when I imagine the scenario it’s not pretty. I suppose it depends on how much human life means? Population grows exponentially, so I guess we need some kind of check on that, but it’s not a very nice way to think of people. Are some lives more valuable than others? And is that value just based on financial resources? Okay, I’m financially sound and healthy right now, but how guaranteed is that? What if I got sick, like really sick, or even worse my kid? How long should my insurance cover me? What happens when my money runs out? I’m not wealthy, just comfortable, so how long could I really afford to continue treatment? If we consider kids, what unhealthy behavior leads them to have leukemia? How much can we blame their individual irresponsibility? What about poor people? If they aren’t taught how to live a healthy lifestyle, how can we expect them to have one? What about the whole super-market problem in poor neighborhoods? I guess what I’m wondering is can we just lump everyone into a personal responsibility category and not take into consideration ignorance or innocence? How do we decide who is worthy? What are we going to do with all of these old people on the way?

Then I look at it from the perspective of living downtown. There are plenty of homeless people that annoy me, but there are some that I just can’t even look at because I wonder how they got there, they look like me, just older. Are we moving back towards a social Darwin mentality? If so, how do we know the strongest in the social structure today, are truly the strongest we need for long-term human survival?

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Avatar for user 'DeLaRick'

DeLaRick | March 29, 2012 at 2:24 p.m. ― 5 years ago


"Reasonable response" in an emergency room?!?! Good one! (Security can, and often does, get out of hand even when patients are asked to wait, much less an outright denial of treatment. Ever heard of a "Code Green"?) Do yourself a favor and visit any ED in the area so that you may be better informed.

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Avatar for user 'benz72'

benz72 | March 29, 2012 at 4:18 p.m. ― 5 years ago

SN, is your suggestion that because we don't want to answer those questions that we should avoid asking them?
I am going to die, at some point I am not going to be worth saving. It's just the way things are. I don't have to like it, but I will have to accept it. I'm not wealthy either. I need to make sure I'm covered and I forgo things that would be more immediately gratifying to ensure I will be. Choosing otherwise seems foolish to me, but I don't think I should force others to self-invest.

If you can devise a better measure for who should be given a limited resource than 'those who pay for it' then please let me know what it is.

'What are we going to do with X' is, in my view, a false question. "We" don't need to do any particular thing with X. The real questions are 'what does X choose to do with X?' and 'How motivated is X to work towards that goal?'

DLR, Is your suggestion that we should structure our medical system to accommodate and reward unreasonable actions? That doesn't seem particularly helpful or wise to me. (And no, I don't know what a hospital code green means, nor am I curious enough to stop doing the work that provides my medical insurance to go find out.) If you think it’s important, why not just explain it?

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Avatar for user 'DeLaRick'

DeLaRick | March 30, 2012 at 11:36 a.m. ― 5 years ago


A "Code Green" is a violent episode or encounter at a hospital. They happen often. Patients and/or their loved ones would become very violent if/when refused treatment solely on their inability to pay. There are plenty of comparisons one could use to extrapolate the point further, such as "Why don't people get violent when they do not have the money to purchase an item at the supermarket?" That's an apples to oranges argument, though, because treating indigents or uninsured patients in ERs was never a "wait and see" proposition. Our society has been conditioned to seek treatment in ERs regardless of their circumstances. I am directly affected by that reality in my line of work.

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Avatar for user 'EverNewEcoN'

EverNewEcoN | March 30, 2012 at 12:49 p.m. ― 5 years ago

Simply saying pro-reform is based on health care
being singularly different omits too much.

So it's about 40,000 premature deaths annually,
400,000 every 10 years, 4 million every 100 years.

That's not the half of it.

It's a large multiple of that losing limbs prematurely, etc.

But the carriers, statutorily immune from the anti-trust laws,
don't care that you're naively unaware that the uninsureds' cost, after
arriving in the system, is shifted to you, the carriers' risk pre-defined

That's called asymmetry:

they are a cartel that can't lose, and they're
one with a humungous margin above MLR (medical loss ratio) on top
of huge admin costs (a multiple of what a non-asymmetrically oligopolistically
controlled system would pay itself.)

If you're covered independently, particularly, and, say, you want to
move to Vegas for a job or to take advantage of crashed condo
prices on the strip, you often can't move from state to state cause
of the cherry-picking (pre-existing conditions.)


A San Diego microblogger.

Have a nice day.

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Avatar for user 'benz72'

benz72 | April 2, 2012 at 8:10 a.m. ― 4 years, 12 months ago

DLR, is your contention then that once people come to expect a free service it is impossible to remove it even if it isn't financially viable? What do you believe the outcome will be if, as costs continue to rise, hospitals begin refusing federal funding to avoid the financial burden of unpaid bills and require payment from all of their patients? At some point, it makes sense to 'amputate'.
Are you suggesting that we must continue to provide an undeserved benefit based on the threat of violence? That sounds a lot like extortion or outright theft to me, which causes me to question it as a foundation for good policy.

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