Conservatives Struggle With Key Anti ‘Obamacare’ Argument

March 30, 2012 1:02 a.m.

For the challengers’ constitutional attack against the individual mandate in President Obama’s health care law to withstand scrutiny, they need to maintain two key questionable arguments.

The first is the plaintiffs’ claim that the law’s mandate and the penalty enacted to enforce the mandate are fully distinct. Their challenge depends on the court viewing the mandate as a command, and not part of a more general incentive.

Relatedly, they claim that the command itself is meant to draw non-participants into a market they may not want to enter. For this to fly, they have to contend that the market the government is regulating — or that Congress intended to regulate — is the market for health insurance and not the much broader market for health care services.

This has become a central point of contention, and it could be an issue on which the court’s decision turns. And yet squaring the challenger’s argument with the history and purpose of the health care law presents opponents of the law with a question they’ve had a very hard time answering.“The commerce is not the health insurance market,” former Reagan Solicitor General Charles Fried told the Washington Post. “The commerce is the health-care market, as Verrilli said a million times. And it’s very hard to deny that.”

Paul Clement — the challengers’ attorney — tried his best. But this was one line of argument he, and his conservative fellow travelers on the Supreme Court bench, had a hard time sustaining.

“This statute undeniably operates in the health insurance market,” he told the court Tuesday. “And the government can’t say that everybody is in that market. The whole problem is that everybody is not in that market, and they want to make everybody get into that market.”

Enter Justice Elena Kagan with the obvious counterpoint. “Well, doesn’t that seem a
little bit, Mr. Clement, cutting the baloney thin?” she asked rhetorically. “I mean, health insurance exists only for the purpose of financing health care. The two are inextricably interlinked. We don’t get insurance so that we can stare at our insurance certificate. We get it so that we can go and access health care.”

Here’s Clement’s attempt to break that link.

“Well, Justice Kagan, I’m not sure that’s right. I think what health insurance does and what all insurance does is it allows you to diversify risk. And so it’s not just a matter of I’m paying now instead of paying later. That’s credit. Insurance is different than credit. Insurance guarantees you an up-front, locked-in payment, and you won’t have to pay any more than that even if you incur much great expenses. And in every other market that I know of for insurance, we let people basically make the decision whether they are relatively risk averse, whether they are relatively non-risk averse, and they can make the judgment.”

His argument, though, drew him directly into the analogy that conservatives like to avoid: car insurance. State governments mandate that car owners carry insurance. There’s little doubt the federal government could issue a similar mandate if needed.

Here’s his exchange with Justice Sonia Sotomayor.

JUSTICE SOTOMAYOR: But we don’t in car insurance, meaning we tell people, buy car — not we, the states do, although you’re going to — I’ll ask you the question, do you think that if some States decided not to impose an insurance requirement, that the federal government would be without power to legislate and require every individual to buy car insurance?

MR. CLEMENT: Well, Justice Sotomayor, let me say this, which is to say — you’re right in the first point to say that it’s the states that do it, which makes it different right there. But it’s also -­

JUSTICE SOTOMAYOR: Well, that goes back to the substantive due process question. Is this a Lochner era argument that only the States can do this, even though it affects commerce? Cars indisputably affect commerce. So are you arguing that because the states have done it all along, the federal government is no
longer permitted to legislate in this area?

MR. CLEMENT: No. I think you might make a different argument about cars than you would make about health insurance, unless you tried to say — but, you know, we’re -­

JUSTICE SOTOMAYOR: Health insurance — I mean, I’ve never gotten into an accident, thankfully, and I hope never. The vast majority of people have never gotten into an accident where they have injured others; yet, we pay for it dutifully every year on the possibility that at some point, we might get into that accident.

MR. CLEMENT: But, Justice Sotomayor, what I think is different is there is lots of people in Manhattan, for example, that don’t have car insurance because they don’t have cars. And so they have the option of withdrawing from that market. It’s not a direct imposition from the government. So even the car market is different from this market, where there is no way to get outside of the regulatory web. And that’s, I think, one of the real problems with this because, I mean, we take as a given -­

JUSTICE SOTOMAYOR: But you’re — but the given is that virtually everyone, absent some intervention from above, meaning that someone’s life will be cut short in a fatal way, virtually everyone will use health care.

MR. CLEMENT: At some point, that’s right.

It breaks down pretty quickly. But that doesn’t mean conservative justices aren’t sympathetic to the argument anyhow.

“I don’t agree with you that the relevant market here is health care,” said Justice Antonin Scalia. “You’re not regulating health care. You’re regulating insurance.”

Chief Justice John Roberts tried a different tack. “You say health insurance is not purchased for its own sake, like a car or broccoli; it is a means of financing health care consumption and covering universal risks,” he noted. “Well, a car or broccoli aren’t purchased for their own sake, either. They’re purchased for the sake of transportation or, in broccoli, covering the need for food. I don’t understand that distinction.”

“The difference, Mr. Chief Justice, is that health insurance is the means of payment for health care, and broccoli is not the means of payment for anything else,” objected Solicitor General Donald Verrilli Jr.

“It’s the means of satisfying a basic human need,” Roberts rebutted. “[J]ust as insurance is the means of satisfying [a basic human need].”

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