Day 2: Obama admin attorney goes round-for-round with Supreme Court
Tuesday's two-hour session was devoted to the question of whether PPACA’s requirement that most Americans obtain health insurance or pay a penalty is constitutional.
Donald B. Verrilli, Jr., arguing on behalf of the Department of Health and Human Services (HHS) opened his statement by stating, “[PPACA] addresses a fundamental and enduring problem in our healthcare system and our economy. Insurance has become the predominant means of paying for healthcare in this country. For most Americans, for more than 80 percent of Americans, the insurance system does provide effective access. But for more than 40 million Americans who do not have access to health insurance either through their employer or through government programs such as Medicare or Medicaid, the system does not work. Those individuals must resort to the individual market, and that market does not provide affordable health insurance.”
“Why aren’t those problems that the federal government can address directly?” posed Justice Antonin Scalia, jumpstarting the hyper-inquisitive, dense back-and-forth between Verrilli and the court.
The issue is whether it is constitutional for Congress to enact a health insurance mandate or enact a financial penalty. Verrilli argued that, under the Commerce Clause, what Congress has done is enact reforms of the insurance market, directed at the individual insurance market, that preclude discrimination based on pre-existing conditions, require guaranteed issue and community rating; the minimum coverage provision is necessary to carry those insurance reforms executions.
Scalia, a conservative, later stated in the arguments that he disagreed with Verrilli that the relevant market in the arguments was healthcare. “You’re not regulating healthcare. You’re regulating insurance,” he stated. “It’s the insurance market that you’re addressing and you’re saying that some people who are not in it must be in and that’s different from regulating in any manner commerce that already exists out there.”
Justice John Roberts cautioned Verrilli that the definition of the market is critical. “If I understand the law, the policies you’re requiring people to purchase….must contain provision for maternity and newborn care, pediatric services and substance use treatment,” said Roberts. “It seems to me that you cannot say that everybody is going to need substance use treatment or pediatric services, and yet that is part of what you require them to purchase.”
Referring to the insurance market, Verrilli argued that the attitude that “eventually young and healthy people will get old and obtain insurance” is constricting; citing that in Kentucky “virtually every insurer left the market. And the reason for that is because when people have that guarantee they can get insurance, they're going to make that calculation that they won't get it until they're sick and need it, and so the pool of people in the insurance market gets smaller and smaller. The rates you have to charge to cover them get higher and higher.”
In his concluding remarks, Verrilli stated that everyone subject to the health insurance regulation is in or will be in the healthcare market; only being regulated in advance. “…I urge this court to uphold the minimum coverage provision as an exercise of the taxing power.”
The transcript is available on the Supreme Court’s website.