Congress can regulate the method of payment by imposing an insurance requirement in advance of the time [when] the service is consumed when the class to which that requirement applies either is or virtually most certain to be in that market when the timing of one's entry into that market and what you will need when you enter that market is uncertain and when -- when you will get the care in that market, whether you can afford to pay for it or not and shift costs to other market participants.Okay. Not succinct at all. And not responsive either. Can the SG state limiting principle? Obviously not.
2. Michael A. Carvin (representing the NFIB) argued that Congress didn't restrict its scheme to the people who actually affect commerce by consuming health care services and failing to pay for it. The regulated category, the uninsured, includes plenty of people who do pay their bills and who are not part of the problem. They are simply being swept in to collect the money to cover the costs of health care. Justice Kennedy — whose vote is crucial — says he agrees "that's what's happening here." Transcript at 104. Then he says, in what I think is his most revealing comment:
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 health 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.It's all a matter of degree... proximate cause.... He's not buying the bright-line rules. He's getting intuitive about it. I don't think Carvin meets him in the place where, he's revealed, he's making his mind up.
3. Carvin says the government can't compel you to buy "5 gallons of meat." Gallons of meat! Of course not. It's too bizarre. Transcript at 93.
4. Justice Sotomayor seems to have been watching the news lately, because she refers to the "1 percent." (She's talking about the only people who can pay their own health care bills when something catastrophic happens.) Transcript at 22. She also manifests some of that "empathy" Obama said he wanted when he was choosing a Justice. She says:
[W]hat percentage of the American people who took their son or daughter to an emergency room and that child was turned away because the parent didn't have insurance — do you think there's a large percentage of the American population who would stand for the death of that child — if they had an allergic reaction and a simple shot would have saved the child?Transcript at 98. People don't want children to die... therefore, Congress has the power.
5. Paul Clement, representing the states, argues that the "solution" Congress came up with goes way beyond the problem the SG identifies (which is that uninsured people will consume services that they won't pay for).
If all we were concerned about is the cost sharing that took place because of uncompensated care in emergency rooms, presumably we'd have before us a statute that only addressed emergency care and catastrophic insurance coverage. But it covers everything, soup to nuts, and all sorts of other things.Transcript at 74-75. Soup to nuts! Just slop that into my bucket of meat. You see the point though: There's an argument that it's sensible to characterize the uninsured as already in the market because of the costs that they represent and that they are now shifting onto the people who do pay for healthcare, but they're forced to buy insurance that covers much more than they are really at risk to consume. They're being swept in and exploited to get more money to spread around.
6. When the SG tries to argue that the penalty for failing to buy insurance is actually a tax (and thus within the Taxing Power), Justice Scalia says: "The President said it wasn't a tax, didn't he?" Transcript at 47. (The SG's answer was basically that it didn't matter.) Justice Ginsburg didn't seem to think it was a tax either: "A tax... is a revenue-raising device," but the purpose of the penalty is to get people to buy insurance, and if they do, there will be no revenue. Transcript at 48. (The SG said the tax code is full of provisions that push people to do things to avoid taxes.) Justice Kagan said the question is "whether the determined efforts of Congress not to refer to this as a tax make a difference."
I mean, you're suggesting we should just look to the practical operation. We shouldn't look at labels. And that seems right, except that here we have a case in which Congress determinedly said, this is not a tax, and the question is why should that be irrelevant?Transcript at 49. The SG cites a few instances when members of Congress said they were relying on the Taxing Power, at which point the Chief Justice jumps on him: "Why didn't Congress call it a tax, then?" Transcript at 50. The SG admits that they must have thought it would be "more effective" to call it a "penalty."
7. Justice Breyer sounds genuinely angry when Carvin says Congress couldn't — if some terrible disease were "sweeping the country" — require everyone to get inoculated. He's all: "The Federal Government has no power, and if there's — okay, fine. Go ahead. Please turn to Justice Kagan." That felt kind of talk to the hand. Carvin soldiers on, saying it's a local matter. The states would have the power, but not Congress. Then Alito helps Carvin out:
In [Justice Breyer's] hypothetical the harm to other people from the communicable disease is the result of the disease. It is not the result of something that the government has done, whereas here the reason why there is cost- shifting is because the government has mandated that. It has required hospitals to provide emergency treatment and, instead of paying for that through a tax which would be born by everybody,it has required -- it has set up a system in which the cost is surreptitiously shifted to people who have health insurance and who pay their bills when they go to the hospital.There you have it. Quite pithy. There's a difference between the work of the government and a terrible disease. Transcript at 86-88.
8. If anyone thinks Justice Scalia, because of his concurring opinion in Raich, was susceptible to an argument based on the Necessary and Proper Clause, they should read pages 26 to 29 of the transcript.
The argument here is that this also is -- 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. What -- what is left?Scalia rejects the SG's answer pointing to those cases that deal with commandeering the states. Scalia wants recognition of the principle of enumerated powers. The SG says Congress isn't "invading the state sphere" because the market in health insurance is so huge. Scalia professed not to understand, then schooled him on the 10th Amendment, which "says the powers not given to the federal government are reserved not just to the States, but too the States and the people." The SG fell back on the generic doctrinal formula — "Congress is regulating economic activity with a substantial effect on interstate commerce" — and uttered the lame phrase "I would submit with all due respect" followed by the last-ditch assertion that any deeper analysis would be to "embark" on "Lochner-style substantive due process" (i.e., would involve the Court in the inappropriate reassessment of legislative judgments). That is, the SG never engaged with Scalia over limited, enumerated powers.
9. Justice Alito corners the SG in this exchange:
JUSTICE ALITO: Are you denying this? If you took the group of people who are subject to the mandate and you calculated the amount of health care services this whole group would consume and figured out the cost of an insurance policy to cover the services that group would consume, the cost of that policy would be much, much less than the kind of policy that these people are now going to be required to purchase under the Affordable Care Act?There you have it. You can see whom the government has chosen to exploit. The young, the healthy must pay for far more than the costs they are accused of shifting to others.
GENERAL VERRILLI: Well, while they are young and healthy, that would be true. But they are not going to be young and healthy forever. They are going to be on the other side of that actuarial equation at some point. And of course, you don't know which among that group is the person who's going to be hit by the bus or get the definitive diagnosis. And that -
JUSTICE ALITO: The point is -- no, you take into account that some people in that group are going to be hit by a bus, some people in that group are going to unexpectedly contract or be diagnosed with a disease that -- that is very expensive to treat. But if you take their costs and you calculate that, that's a lot less than the amount that they are going to be required to pay. So that you can't just justify this on the basis of their trying to shift their costs off to other people, can you?
GENERAL VERRILLI: Well, no, the people in that class get benefits, too, Justice Alito. They get the guaranteed-issue benefit that they would not otherwise have, which is an enormously valuable benefit. And in terms of the -- the subsidy rationale, I don't think -- I think it's -- it would be unusual to say that it's an illegitimate exercise of the commerce power for some people to subsidize others.
10. Justice Ginsburg finds it "very strange" that the government can't adopt an approach that tries to "preserve a role for the private sector, for the private insurers" but it can "can take over the whole thing." Transcript at 90. Justice Kennedy, back at page 25, puzzling over the Taxing Power, had "assume[d] that [Congress] could use the tax power to raise revenue and to just have a national health service, single payer." If it can do something so drastic, why can't it do something more moderate? Why force the government, if it wants to solve this problem, to do it in a more draconian manner? (You see this is what sparks my conspiracy theory: Perhaps Obama et al. would prefer to lose this case and be told the only path forward is single payer.)