At the heart of health care reform lies the individual mandate, which makes it so that individuals must purchase health insurance or else face a fine assessed by the government.
The question before the Court will be whether Congress has the power under the Commerce Clause to require that individuals purchase health insurance.
The Commerce Clause states that “the Congress shall have power…to regulate commerce” among the states and “to make all laws which shall be necessary and proper” to execute that power. The ACA requires that individuals obtain “minimum coverage” or else pay a fine each year that they fail to obtain sufficient coverage.
Challengers have asserted that this mandate unquestionably violates the Commerce Clause. They contend that being forced to participate in interstate commerce is fundamentally different from having your voluntary participation regulated. They further argue that the government’s attempt to blur the line is intentionally misleading and that the Court should draw a clear line between regulating commerce and forcing someone to engage in commerce so that the government can then regulate it.
The government asserts that everyone, by default, will engage in commerce in the area of health care at some point in their lives, whether they are insured or not. The government contends that the power to regulate in the area of health care naturally follows from that inevitable participation because it merely regulates how an individual participates, not whether they do.
Opponents of the law argue that if the Court upholds this mandate then there is nothing stopping the government from mandating that we purchase cars from GM or buy broccoli every month, as these two are actions that fall under interstate commerce and theoretically everyone uses some form of transportation and everyone eats. The challengers contend that the government has never been allowed to force someone into commerce and that allowing it would effectively wipe out any limitations on federal power that the Commerce Clause may still impose.
The government counters by saying that everyone participates in the health care market and that because health care is such a massive part of our economy (roughly 16% of GDP), the ability to regulate how the commercial market functions is necessarily covered by the Commerce Clause.
Courts below have split 3-1 in favor of upholding the individual mandate, including several opinions by conservative judges. However, the outcome of the individual mandate question at the Supreme Court level is anyone’s guess. The decision will likely be determined by which plurality of Justices can win the horse-trading game and convince a waffling judge or two to sign onto their opinion. Whichever way the Court comes down, expect the opinions to be complicated, nuanced, and narrowly written – bright line rules will be hard to come by with such a divisive and politically contested issue.
UPDATE: This tweet from ScotusBlog a few seconds ago:
Paul Clement gave the best argument I've ever heard. No real hard questions from the right. Mandate is in trouble.
UPDATE #2: Amy Howe of SCOTUSblog provides an update covering Verrilli’s presentation:
The good news for Verrilli, the government, and the supporters of the mandate is that the four liberal Justices asked relatively few questions, and the questions were largely friendly. The bad news is that there is no apparent fifth vote in support of the constitutionality of the law.
When the Solicitor General argued that the mandate does not require people to purchase health care, but instead merely regulates when and how they will pay for that care, Justice Kennedy seemed skeptical, asking whether Congress’s power to regulate commerce allows it to create commerce to then regulate. Other conservative Justices – Chief Justice Roberts, and Justices Scalia and Alito – also seemed skeptical of the government’s arguments, focusing on whether there is a limiting principle. They wanted the government to explain whether Congress can force individuals to buy things other than health insurance, including cars and broccoli, or whether the government can require that individuals exercise. It will be interesting to see whether the Justices’ questions for the health care challengers reveal anything different about their inclinations.