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“What we’re seeing now is baffling. The Republicans were the fathers of the individual mandate, and now they want to give it up for adoption,” Schumer said during a Capitol Hill news conference.
But Kennedy did appear to give Republicans more to cheer than Democrats. Early on, he challenged Solicitor General Donald Verrilli Jr., who was arguing for the Obama administration, over whether the health insurance mandate represented an unprecedented use of federal power.
“Assume for a moment this is unprecedented,” he said, regarding the requirement that individuals take an affirmative action to buy a product. “Do you not have a heavy burden to show authorization under the Constitution?”
He later added, “The question is: Are there any limits on the Commerce Clause?”
And Kennedy seemed troubled by requiring people to buy a product, noting that laws do not typically require citizens to take an action — even to rescue a blind person about to be struck by a car. Requiring people to take an action “changes the relationship of the federal government to the individual in a very fundamental way,” he said.
Verrilli got off to a shaky start, stumbling over his first words — which Senate Judiciary Chairman Patrick Leahy (D-Vt.) dismissed as allergies — before arguing for the mandate as the only way to preserve a private insurance market while ending discrimination based on pre-existing conditions.
Verrilli told Kennedy and the other justices that there is ample authorization for the mandate in the Constitution, both under the Commerce Clause and under the government’s taxing powers. And he noted the unique nature of the health care market — that all or nearly all people inevitably procure health care services.
Justice Antonin Scalia scoffed at that. Everybody is in the market for food, therefore you could make everybody buy broccoli, he posited at one point.
Justice Ruth Bader Ginsburg rebutted Scalia, however, in one of many exchanges between the liberal and conservative justices. “Unlike food or any other market ... when disaster strikes, you may not have the money” to pay for health care, she said.
Verrilli said the Commerce Clause does have limits and that the government could not require people to buy a commodity to stimulate demand.
Chief Justice John Roberts probed both sides of the debate. He asked Verrilli: “Can the government force you to buy a cellphone” to make it easier for rescue services to find you? Justice Samuel Alito asked whether the government could force everyone to buy burial insurance because everyone dies.
Verrilli said health insurance is different because of the massive cost-shifting that takes place when uninsured people use the health care system and don’t pay.
Alito also questioned Verrilli over how some people might end up paying much more for insurance than their actuarial risk. “The mandate is forcing these people to provide a huge subsidy to the insurance companies,” he said, adding that it requires them to buy insurance that will be consumed by someone else. But Ginsburg interjected: “That’s how insurance works.”
Verrilli said the court has a duty to rule that Congress has the authority to regulate a national problem that has more than 40 million people without health insurance and to defer to Congress on the means in which to do so.