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Alito also questioned Verrilli about the fact that many of the people subject to the mandate will 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 contended that without the mandate, the government would not be able to require insurance companies to end discrimination based on pre-existing conditions. States that have done so without a mandate have made the problem worse, causing premiums to soar as people wait until they get sick to purchase.
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.
The justices also sparred over whether the mandate was a tax or not. Scalia noted that “the president didn’t seem to think so.”
Paul Clement, who is representing 26 states challenging the law, called the younger, healthier people who are typically uninsured the “golden geese” who pay to lower everyone else’s health insurance premiums even though most of them wouldn’t get sick that year.
And Michael Carvin, representing the National Federation of Independent Business, warned that if the court allows the mandate to stick, there would be no limit to what Congress could force people to do.
But Roberts challenged that, noting the government’s contention that everyone is already in the health care market and the government is merely regulating when they have to pay for it.
Clement sought to steer Roberts to the market for insurance, which he said was a separate question than the market for health insurance itself.
That prompted a rebuke from Justice Elena Kagan. “We don’t get insurance so we can stare at our insurance certificate,” she said.
Ginsburg also got to what she thought was the core of the case, that people now are free riders on the system. “People are getting cost-free health care and the only way to deal with that is to make them pay earlier,” she said.
The justices had an audience heavy with history, including Rep. John Dingell (D-Mich.), the dean of the House who had been pushing universal health insurance for decades; Senate Finance Chairman Max Baucus (D-Mont.), the principal author of the bill; Senate Minority Leader Mitch McConnell (R-Ky.) and more than 15 other Members of Congress, as well as Attorney General Eric Holder, Health and Human Services Secretary Kathleen Sebelius and top White House aide Valerie Jarrett.
McConnell said after the arguments that he was heartened by the skeptical questioning from the conservative justices, leading him to hope that they will overturn the law. But Sen. John Kerry (D-Mass.), who was also in attendance, warned against reading too much into the questioning, given that the justices often play devil’s advocate.