Today’s Supreme Court arguments really get to the crux of the matter. They concern the constitutionality of the individual mandate, the part of the law that forces Americans in the individual marketplace with the ability to pay (there is a hardship exemption) to either purchase health insurance or pay a penalty.
The mandate, according to the insurance industry, is what allows them to offer coverage to anyone who seeks it, including those with a pre-existing condition. The government believes that it’s necessary and proper to the regulation of a huge part of the US economy to mandate and collect a fee for non-compliance, under the taxing power. They also argue that the fee helps to cover uncompensated care, and because everyone consumes health care at some point, it’s reasonable to collect money to pay for that through a mandate.
Detractors argue that the forced purchase of a product from a corporate entity violates personal liberty and takes us down a slippery slope where the government’s power borders on being unlimited. “Can the government force everyone to eat broccoli,” is the common trope asked by those opposed.
But because of the way in which the US health care system works – and because Obamacare by and large did not mess with that system – the mandate will only come into play for 2-5% of the total population.
Just 2 percent of the U.S. population would be subject to the aspect of health care reform at the center of a constitutional challenge before the Supreme Court this week — the individual mandate, a study released Monday by the Urban Institute found. The analysis said 98 percent of Americans would either be exempt from the mandate — because of employer coverage, public health insurance or low income — or given subsidies to comply.
Including those who are subject to the mandate, but would get subsidies, increases the total number of people affected to 5 percent of the population, according to the Urban Institute, a non-partisan policy research organization based in Washington, D.C. (Some of those subject to the mandate who get subsidies would still need to dig into their pocket to cover the difference.)
Now, as the US system evolves, and more companies drop health insurance and pay the employer mandate penalty – which is oddly not part of this challenge – perhaps that 2-5% number expands. But that’s all we’re talking about here.
Nevertheless, in figuring out this question, the Court will be ruling on the larger principle of governmental power and its limits. So it’s appropriate that they’ve scheduled 2 hours, twice the normal length, for the oral arguments.
What seems completely inappropriate in hindsight is why they scheduled yesterday’s hearings. Recall that yesterday, the question before the Court was whether or not they had the right to rule on the law, because if the individual mandate is associated with a tax, and the tax isn’t collected until 2014, then the Anti-Injunction Act of 1876 applies and plaintiffs must wait until they pay the tax to have standing. Neither side of the case agreed with that. The Court had to hire an outside counsel to argue the side that said the Anti-Injunction Act applied.
And then they pilloried the poor guy! Almost no Justice bought the argument that the mandate was a tax for purposes of that Act, and that they couldn’t hear and rule on the merits of the case. This begs the question of why they bothered with the arguments in the first place. They could have denied cert, which would have been especially appropriate, considering that neither side wanted to argue the point. One lower court said the Anti-Injunction Act applied, but several lower courts did not. There are other arguments among the many lower court rulings that will not get a hearing before the Court. So why schedule that day of arguments?
It looked suspiciously like a setup. Remember that today, part of the government’s argument will be that the mandate is a tax, for the purposes of being Constitutional under the taxing power of Congress. Justice Sam Alito made reference to this yesterday, saying that Solicitor General Donald Verrilli is trying to have things both ways. “Today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax,” Alito said. And there were references to this elsewhere.
The government’s argument doesn’t depend on the mandate being a tax – in my opinion the other arguments, like the invocation of the interstate commerce clause and the necessary and proper clause, are far more reasonable – but it’s certainly a part of it. And we had 90 minutes yesterday of practically every Justice saying over and over again that the mandate isn’t a tax (for purposes of the Act), that Congress never calls it a tax, and that the notion that they are blocked from ruling on the issue because the mandate is a tax is absurd. And today, Verrilli will walk in and argue that the mandate is a tax. It’s pretty clever to have scheduled that day’s worth of arguments to draw out the flaw in the government’s case.
Anyway, we’ll see how this plays out today. But to the layman’s ears (even to a layman well-versed in health policy), it seems absurd for the government to argue that the mandate isn’t a tax for the purposes of the Anti-Injunction Act but it is a tax under the Congress’ taxing power. And the Supreme Court made sure to highlight that absurdity.