Supreme Court Considers Health Reform Day 2 Recap: Individual Mandate on Trial

Arguments at the Supreme Court Tuesday dealt with whether Congress had the authority to require citizens to purchase health insurance and whether the government could issue a financial penalty for those who decline. Betty Ann Bowser reports then Marcia Coyle and Susan Dentzer discuss the crux of the hearings with Gwen Ifill.

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    The president's health care overhaul was back before the U.S. Supreme Court for a second day, and the justices zeroed in on the central issue.

    NewsHour health correspondent Betty Ann Bowser begins our coverage.


    The arguments today inside the court went to the heart of the Affordable Care Act, whether it's constitutional for the government to require its citizens to purchase health insurance.

    It's by far the most unpopular and contentious part of the new law, although the term individual mandate doesn't appear in it. The mandate requires that practically all Americans have health insurance. That can be through Medicare, Medicaid or employer-sponsored coverage. If you don't any of those, you'll have to buy it.

    And if you have trouble paying for it, the federal government may give you a subsidy. But the bottom line is, everybody has to have health insurance, and if you don't, you'll have to pay a penalty on your tax return starting in 2015.

    The justices heard two hours of arguments on the mandate alone in the second of three days of hearings. The toughest questions for the government came from conservative justices, including Antonin Scalia.

    Solicitor General Donald Verrilli told the court a mandate was essential for a health insurance market to work for Americans whenever they get any kind of medical care.

    ANTONIN SCALIA, associate justice, U.S. Supreme Court: Why do you define the market that broadly, health care? It may well be that everybody needs health care sooner or later, but not everybody needs a heart transplant. Not everybody needs a liver transplant. I mean. . .

    DONALD VERRILLI, solicitor general of the United States: That's correct, Justice Scalia, but you never know whether you're going to be that person.


    . . . could you define the market — everybody has to buy food sooner or later, so you define the market as food. Therefore, everybody's in the market. Therefore, you can make people buy broccoli.


    No. That's quite different. It'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 involuntarily.


    Some supporters of the law say the mandate is pivotal to financing the Affordable Care Act.

    Ethan Rome is the executive director of Health Care for America Now.

    ETHAN ROME, executive director, Health Care for America Now: If everybody carries insurance, it becomes more affordable for all of us and we can eliminate the insurance company abuses, like denials of care and dropping people when we're sick.

    A very small number of people in the United States will be impacted by the so-called mandate. And that's the beauty of this law. We all benefit when we carry insurance. Insurance gets more affordable.


    The law's challengers, including 26 states and the National Federation of Independent Businesses, view the mandate as a federal overreach of power that's unconstitutional.

    Tim Phillips is president of Americans for Prosperity.

    TIM PHILLIPS, president, Americans for Prosperity: We think that's a dramatic escalation of government power and say in the lives of individual Americans. We want people to get insurance, absolutely. But to require by law with penalties both civil and in some cases criminal penalties for a product, that's too much power for the federal government. We believe there's also a constitutional issue as well.


    Some 24 million people, including undocumented immigrants, people in prison, and Native Americans, would be exempt. Those with incomes too low to file a tax return wouldn't face a penalty either.

    After the oral arguments ended, opponents of the law showed up in large numbers near the court to rally against the health care law.

  • TRACY WALSH, Washington, D.C.:

    I'm urging the Supreme Court to strike down Obamacare as a unconstitutional violation of the federal government's limited and enumerated powers.


    Supporters of the law chose today to focus on the benefits of the law for women.

  • COURTNEY EVERETTE, Washington, D.C.:

    Women pay over a billion dollars more a year for health insurance than men. The new law stops discrimination based on gender and requires all plans in that market to provide maternity care.


    The mandate has never had broad public support. And tomorrow the court will hear arguments on whether the rest of the law can be upheld if the mandate is struck down.


    For more on today's arguments, we're joined by the team covering the case for us this week, Marcia Coyle of The National Law Journal and NewsHour health analyst Susan Dentzer, editor-in-chief of the journal Health Affairs.

    Marcia, you're in the courtroom, in the chambers all the time trying to get the sense of how the Supreme Court operates. Today, we just heard arguments pro and con. Was there any clarity?

  • MARCIA COYLE, The National Law Journal:

    I think there was some clarity, but I can't tell you how I think the court is going to rule on this.




    I would say there was a full airing of the issues. It was again a packed courtroom. The arguments were much more interesting and faster-paced than yesterday's arguments on the Anti-Injunction Act.

    And there was really very good lawyering. And I really urge any of our viewers or listeners who are interested in this case to listen to the audio that is now available or read the transcript.


    I spent the bulk of my day listening to the audio.


    I know you did.



    It was amazing. I was struck by all the hypotheticals that were used.




    They were talking about cars. They were talking about broccoli. They talked about — you name it. Let's listen to some of it, in this case, an exchange between Justice Anthony Kennedy, who everyone is watching, and the solicitor general, Donald Verrilli.

    ANTHONY KENNEDY, associate justice, U.S. Supreme Court: In the law of torts, our tradition, our law has been that you don't have the duty to rescue someone if that person's in danger. The blind man's walking in front of a car, and you do not have a duty to stop him, absent some relation between you.

    And there's severe moral criticism of that rule, but that's generally the rule.

    And, here, the government is saying that the federal government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous stages.


    Well. . .


    And that changes the relationship of the federal government to the individual in a very fundamental way.


    I don't think so, Justice Kennedy, because it is predicated on the participation of these individuals in the market for health care services.

    Now, it happens to be that this is a market in which, aside from the groups that the statute excludes, virtually everybody participates, but it is a regulation of their participation in that market.


    So this was basically about the scope of federal power, Marcia.


    Oh, very fundamentally the scope of Congress' power under the Commerce Clause.

    But what Mr. Verrilli is trying to argue to the justices is that this is a unique market. It's not like the food market. One, people are already in the market. There are those who are going to enter at some point. We don't know when. They don't know what kind of service they're going to need. And, unlike other markets, when they do enter and need the service, they may get that service, and perhaps not pay for it, but others will who are insured.


    Susan, we spent a lot of time at this table talking about this bill as it became a law, and there wasn't a lot of attention paid to this mandate issue.

    Was that a big part? Was that on which — at the time that this law became — this bill became a law, was that what this was all hanging on, the way it is now?


    It's not all hanging on it, in the sense that some people have asserted this is a linchpin.

    But it is an important ingredient that will make the insurance reform portions work. If people are all supposed to get into the market, healthy and sick alike, then the advantage of that is, you can spread the costs of insuring everybody across a bigger population.

    And so the relatively small part of — number of people who are sick can — instead of having to pay very high prices because they're sick, can pay a much more level price. And the reverse is true for healthier people. They're going to pay more than if only healthy people were in the market, but if only healthy people got health insurance, we wouldn't need health insurance, right?

    So to make all of this work, that's what the point is of the mandate.


    But the government has to be the one to force this to happen. That's the nub of this debate right now.


    Well, and, again, under the Commerce Clause, the government is here arguing that we have the responsibility to regulate this market. As Marcia said, everybody is eventually in this market. It's not realistic to just sell people insurance when they get sick.

    No insurer would stay in business if they said, OK, now you're sick, let's sell you a policy. Right? It has to be much more predictable than that. So the government is saying, we need to be able to regulate this and we can regulate the timing of this to make it work better for everybody.


    I noticed inside the courtroom today that so much of the defense of the law came — fell to the justices on the court, including Justice Ruth Bader Ginsburg. And we can listen to this exchange between her and Paul Clement, who is a former solicitor general, who was arguing against the law today.

    PAUL CLEMENT, former U.S. solicitor general: When I'm sitting in my house deciding I'm not going to buy a car, I am causing the labor market in Detroit to go south, I am causing maybe somebody to lose their job, and for everybody to have to pay for it under welfare.

    So the cost-shifting that the government tries to uniquely associate with this market, it's everywhere.

    And even more to the point, the rationale that they think ultimately supports this legislation, that, look, it's an economic decision, once you make the economic decision, we aggregate the decision, there's your substantial effect on commerce, that argument works here. It works in every single industry.

    STEPHEN BREYER, associate justice, U.S. Supreme Court: Of course, we do know that there are a few people, more in New York City than there are in Wyoming, who never will buy a car, but we also know here — and we don't like to admit it — that because we are human beings, we all suffer from the risk of getting sick. And we also all know that we'll get seriously sick.

    And we also know that we can't predict when. And we also know that when we do, there will be our fellow taxpayers, through the federal government, who will pay for this.


    That was, of course, Justice Stephen Breyer, not Justice Ruth Bader Ginsburg.

    Does that kind of argument seem — when you're sitting in the courtroom, did that resonate in any way?


    Well, I think it does with those who support the law, obviously, but not with Mr. Clement and not with Michael Carvin, who also argued today against the law.

    They are pointing out to the justices that they don't buy the government's argument that this is a unique market, that the cost-shifting that occurs in the health care market, they say, occurs in every market. And so Justice Breyer, Justice Ginsburg, Justice Kagan, they seemed to pick up on the government's arguments and tried to press Mr. Clement and Mr. Carvin to respond to those arguments.


    But the chief justice and Justice Kennedy and Justice Scalia and the silent Justice Thomas seemed to be. . .


    They were much more aggressive with the government. But that's almost understandable, because the government is appealing a lower court decision that struck down the mandate.

    The government has in a sense the tougher argument to make. This is an unusual exercise of Congress' power. And so the government has to lay out the reasons for that power. And, also, the court was very interested in, if this is OK under Commerce Clause, what are the limits? What stops Congress from ordering or commanding that consumers or citizens purchase or do other things?


    There's also an argument in the court today about whether this is really just not the job of the federal government, it should be the job of the states. Is there any record to show that states have been willing to step into this void that the government says exists in the health care availability?


    Yes, indeed.

    Many states have implemented insurance market reforms. And one state in particular, Massachusetts, also put in place an individual mandate, which, since it was enacted, has edged up the numbers — the percentage of people ensured in Massachusetts has gone from 87 percent to close to 95 percent over the course of the last several years.

    So states have gone down this road. And, indeed, Mr. Clement said today in the argument that states could do this. If this federal mandate is invalidated, states could come back and impose that kind of mandate, just the way Massachusetts did.

    So a lot of people now are starting to say — to ask the question, could this law be made to work in other ways? And so people are pointing to the examples of various states that either took the action that Massachusetts did or that also put in place insurance market reforms in the absence of a mandate, and see what happened then.

    And there also, we have a couple of examples of states that put in place so-called guaranteed issue. We're going to get everybody — everybody has to be offered insurance, didn't put in place a mandate, and in those states, premiums often went through the roof or insurers pulled out because they thought they would be driven out of business. So we see both positive and negative examples of this kind of overall regulation.


    Which is why the government argues this is a national problem, this is something Congress has to address.


    But the government also is now — tomorrow has to argue whether — if this mandate part were to go away, whether the law still stands.


    Yes. Absolutely. That's going to be the severability argument.

    And the challengers to the law want to see the entire law fall. The government has a more nuanced argument, because — because if the mandate is unconstitutional and it has to be severed, there are two key provisions that will have to go with it, two very popular provisions as well.


    And that's where the big argument goes tomorrow.

    Marcia Coyle. . .


    As well as Medicaid, that's also on tap.


    Okay, that's right in the afternoon.

    Susan Dentzer.

    Thank you both very much.


    My pleasure.


    Thank you, Gwen.