John GarnerUncategorized

So much has already been written about the second day of arguments before the Supreme Court that it is hard to know what to add.  This posting will focus on what was said, rather than on speculating about what it means.

The second day of arguments was about the constitutionality of the mandate that virtually all individuals purchase health insurance.  

Questions and comments from the Justices regarding the constitutionality of the individual mandate included the following:

  • Chief Justice John Roberts:  “Once we say there is a market and Congress can require people to participate in it, as some would say—or as you would say, that people are already participating in it…all bets are off and you could regulate that market in any rational way.”
  • Justice Antonin Scalia:  “The federal government is not supposed to be a government that has all powers; it’s supposed to be a government of limited powers…What is left?  If the government can do this, what, what else can it not do?”
  • Justice Anthony Kennedy:  “Can you create commerce in order to regulate it?”
  • Chief Justice John Roberts:  “…they are not creating commerce in health care.  It’s already there and we are all going to need some kind of health care; most of us will at some point.”
  • Justice Anthony Kennedy:  “when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?”
  • Justice Anthony Kennedy:  “They are in the market in the sense that they are creating a risk that the market must account for.”
  • Justice Anthony Kennedy:  “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.”
  • Justice Ruth Bader Ginsburg:  “There’s something very odd about that, that the government can take over the whole thing and we all say ‘Oh, yes, that’s fine,” but if the government wants to get—to preserve private insurers, it can’t do that.”
  • Justice Ruth Bader Ginsburg:  “I thought what was unique about this is it’s not my choice whether I want to buy a product to keep me healthy, but the cost that I am forcing on other people if I don’t buy the product sooner rather than later.”
  • Justice Stephen Breyer:  “I look back into history and I see it seems pretty clear that if there are substantial effects on interstate commerce, Congress can act.”
  • Justice Samuel Alito:  “Isn’t it the case that what this mandate is really doing is not requiring the people who are subject to it to pay for the services that they are going to consume?  It is requiring them to subsidize services that will be received by somebody else.”
  • Justice Sonia Sotomayor:  “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.”
  • Justice Elena Kagan:  “The aggregate of all these uninsured people are increasing the normal family premium, Congress says, by $1,000 a year.  Those people are in commerce.  They are making decisions that are affecting the price that everybody pays for this service.”


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