Cars, Burial Insurance, and Broccoli

The U.S. Supreme Court is currently hearing “Department of Health and Human Services v. Florida,” the arguably monumental case that challenges the constitutionality of the recent health care bill (“Obamacare”). The argument that was heard by the court this morning is perhaps the most important part of this case, because it strikes at the heart of constitutionality: does the federal government have the power to mandate individual health insurance?

I’ve read a good bit of the written transcript, and the conversation is remarkably accessible and lively, with discussion ranging at times from health care to health insurance, burial insurance, car purchases, and even broccoli. There are many facets to the arguments, including some (such as the tax vs. penalty issue) that I’m not really interested in. There are some questions that I feel are particularly important, though, and I wanted to mention them.

The first question is this: who is in the healthcare market? Must a person have current health needs to be considered “in” the market?

The administration’s answer (as argued by Solicitor General Donald Verrilli) was that *everyone* is in the healthcare market, regardless of whether they currently need healthcare, and indeed regardless of whether they are even aware they are in the market. This argument hinges on the observation that refraining from purchasing insurance drives up the premiums for everyone else.

However, Paul Clement (who argued against the mandate on behalf of the state of Florida), observed that this is not a unique aspect to the healthcare market: “These are economic decisions, they have effect on other people; my failure to purchase in this market has a direct effect on others who are already in the market. That’s true of virtually every other market under the sun.”

The administration makes it clear that they are not asking for the power to regulate ANY market, and Verrilli asserted that the difference is grounded in a social norm: “In the health care market, you’re going into the market without the ability to pay for what you get, getting the health care service anyway as a result of the social norms … to which we’ve obligated ourselves so that people get health care. … I can’t imagine that that the Commerce Clause would forbid Congress from taking into account this deeply embedded social norm.”

Justice Scalia (rightly, I think) challenged the assumption that this social norm is actually something we should obligate ourselves to, at least with formal legislation. As I’ve mentioned on this blog in the past, I believe that it is the proper place of the church, not the government, to ensure that people don’t languish in poverty or sickness. I realize that this is a subjective belief, however, and I feel the American people are moving in general towards a situation in which the government is indeed in the business of universal social welfare. I’m undecided regarding if or when I will cease resisting this movement.

A second interesting question is this: does the mandate merely regulate a method of payment, rather than a market itself?

Both sides seemed to be amenable to the concept of requiring health insurance at the point of service, and I think I’m also in agreement with the constitutionality of such a mandate. This would bring it in line with something like car insurance, which must be purchased before or at the point of an action initiated by an individual (e.g. buying a car in the latter case, or going to a hospital in the former). Verrilli observed that payment WILL be made when a person receives health care; he argued that the only issue under consideration here is the timing of that payment. Should the government require the payment ahead of time, for instance by requiring the purchase of health insurance?

Justice Roberts responded to this argument at one point: “Unless I’m missing something, I think you’re just repeating the idea that this is the regulation of the method of payment. And I understand that argument. And it may be a good one. But what I’m concerned about is, once we accept the principle that everybody is in this market, I don’t see why Congress’s power is limited to regulating the method of payment and doesn’t include [other aspects] as it does in any other area.”

I agree that this argument seems to be sidestepping the issue. Regulation of payment timing doesn’t seem to be a special case of the regulation of commerce, and it is perhaps less important than the first question I mentioned, which is the question of the size and makeup of the “healthcare market.”

This brings me to the final question I’d like to comment on, and that is this: is there really a *single* healthcare market? This question seems to me to precipitate many of the others, and I wonder if it’s a question to which the answer may provide a compromise that both sides of this issue can accept.

It seems to me (and several of the justices alluded to this in their comments) that there are multiple “levels” of health care. The sort of care that we wish to guarantee with our “social norms” certainly stops short of encompassing every medical procedure and treatment possible. I’m fairly certain that no one would argue that elective plastic surgery should be a part of the mandated health insurance coverage, for instance. Almost everyone would argue that emergency resuscitation and trauma care should be a part of this coverage, however.

In between are hundreds and thousands of “grey areas,” and my question is whether we can partition these procedures and treatments in such a way that we can agree on the constitutionality of mandated insurance for a particular portion, given adequate evidence that the overwhelming majority of people will require a treatment from that portion at some point in their lives. If that argument could be made, I think I would be comfortable accepting Verrilli’s assertion that this mandate is a special case which is justified by our social norms.

Otherwise, I believe that we must conclude that this mandate exceeds the powers of congress as enumerated by the U.S. Constitution.

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