Updated at 11:35 AM, April 6th, 2012
Last week, the Supreme Court heard arguments regarding, among other topics, the individual mandate provision of Affordable Care Act. There were protests outside the court and extensive media coverage — much of it predicting that the mandate, and possibly the entire law, will be overturned.
On Wednesday, the Health Law, Bioethics & Human Rights Department at Boston University School of Public Health posed the question many of us had been asking ourselves: “The Supreme Court and the Affordable Care Act: What Went Wrong?”
A panel of three legal scholars from the department – George Annas, Wendy Mariner and Leonard Glantz — reflected on last week’s Supreme Court proceedings and explained what they believed the arguments were really addressing.
Below you can listen to the remarks from all three professors as well as the subsequent question and answer session.
- Individual rights not the issue: “This is not a case about individual rights. The case is about federal power. The case has nothing to do with individual rights at all. And the case has to do with whether or not the federal government has the power to make people buy stuff. That is solely what the case is about.”
- Federal vs. state power: “The reason why that’s controversial is that we tend to think of the federal government as having all the power. They have like nuclear bombs, the income tax and lots of money. They must have all the power in the world — but they don’t. The federal government has what’s referred to as enumerated powers. If it’s not listed in the Constitution, they don’t have it. What this question is about is whether or not there’s something in the Constitution that says the federal government can make people do this.”
- The broccoli argument and the limit of federal power: “One of the things a court will do at times like this is say, ‘If we say you can make people buy insurance, is there anything that the federal government can’t make people buy?’ This is the broccoli argument. If we can make them buy health insurance, can’t we make them buy broccoli or anything else? Would the federal government have that power?’ And what we know is that the court is not going to give the federal government that power. There’s like no question about it. And so, what you heard during the argument is: If we say the federal government can make people buy insurance, what is the limit of the federal government’s power? Is there any limit on that power? And if there isn’t, then the court won’t permit it. And that’s why the court asked over and over again, particularly asked the administration lawyers, what is your limiting principle?”
- Take away: “You know there were all these cases you learned about in school, you had to learn the names, you forgot what they were about. This is going to be one of those cases, about the fundamental authority of the federal government. And that’s why it’s so contentious and so hard. It comes up in the context of health insurance but it’s much broader. It’s a much more fundamental case in terms of federal power.”
- What the challengers say: “The challengers argue that the only thing they seem to be worried about in the statute is the individual mandate. They treat the rest of the Affordable Care Act as though it were irrelevant and not enacted. They argue that people who do not have insurance are not in any market at all. And they argue that therefore it is beyond the concept of regulating commerce to require people to buy insurance or basically anything else, they argue by implication. The idea is if you are not buying something or selling something, you are not in any market. And if you’re not in any market, then you’re not part of commerce. And Congress only has the authority to regulate commerce among the states.”
- What the government says: “The government, on the other hand, took the position that the market that we are really concerned about is the market for health care – and everybody is already in that market. Over a lifetime, less than one percent of the population does not use medical care. Everybody’s in the market for health care at one time or another…86 percent of health care costs are paid for with insurance as opposed to private money…So if everyone’s in the health care market, and insurance is the way we pay for health care, then surely the government can regulate the way that care is paid for by requiring people to have insurance coverage. They also argue that it’s also necessary because, unlike cars or broccoli, if you need health care (certainly emergency care), you will get it whether you pay for it or not. If you need a car, you will not get it just because you need it. So we are already paying for a great deal of care and much of what the insurance does is spread the cost of that in order to make the financing of care smoother and affordable.”
- It’s all about timing: ”Really, it’s a question, according to the government, of timing. They agreed — in oral argument interestingly, even the challengers agreed — that it would be permissible for the government to require you to buy health care when you come to the door, not let you into the hospital unless you paid for it right away. They even were about to agree that the government could make you buy health insurance when you arrived at the hospital door because then you were entering a market. So then the question became, well, it’s just a matter of timing. Do you pay for it when you arrive or do you pay for it earlier?”
- Take away: ”So that was a key argument for the government — all focusing on what counts as commerce and what counts as being engaged in commerce and whether that commerce is health care or health insurance.”
- The uniqueness of our health care system: ”There’s nothing like the health care market. There really is nothing like the way we finance health care. There’s nothing like emergency departments, even though Justice Roberts tried to argue there were. There’s just nothing like this at all, and so you can have a rule just for this. It’s kind of like the Bush v. Gore argument that Justice Sandra O’Connor made, ‘Okay, I’ll sign this opinion as long as you guarantee me it’ll never be used again as precedent for anything else.’ That’s kind of the argument that the health care is unique; you can regulate this industry and not regulate anything else.”
- Too much theory, not enough humanity: “I think it’s fair to say [Solicitor General] Verrilli could’ve been better, but he is one of the most respected Supreme Court litigators, and I certainly wouldn’t criticize him for his performance. On the other hand, it was bloodless; it was very theoretical. And one might say that’s exactly what you should do in front of the Supreme Court. And usually I’d say yes to that, but I think that this piece of legislation is so important to the lives of so many millions of Americans that it actually deeply affects even whether they’re going to live or die, let alone how they’re going to be cared for. That was totally absent — the real lives of real Americans were totally absent from this debate until literally the last minute on the third day of the Solicitor General’s argument.”
- Take away: ”We’re not going to predict the outcome — I don’t think any of us will — but unless Justice Kennedy can see beyond the limiting principle to see the real people who are going to be helped and are hurt by the current system, it’s problematic.”
Question And Answer Session
Question from David Rosenbloom, Professor of Health Policy and Management at BUSPH:
How far below the surface is the notion that the individual mandate is really being used to redistribute wealth from healthier, younger people to older, sicker people and that that’s a fear that is really behind some of this challenge?
George Annas: ”Justice Alito made that point over and over again. He kept saying you got this group of young people, young healthy people who you want to insure but instead of charging them what actuarially they will actually spend, you’re triple charging them because you want to subsidize these older, sick people. And he thought that that was just wrong. He made that very clear. It’s right there. It’s certainly one of the arguments: Socialism (they don’t use the term socialism, but it’s the idea). He event went to so far as to say — he was talking about trying to rewrite the statute — what young people need is catastrophic insurance, but the ACA won’t let them buy that, you have to buy the minimum coverage insurance.”
Leonard Glanz: ”But this is one of the problems with thinking about this as insurance. And it’s actually not insurance. We talk about it as insurance but what it is is as payment scheme for a health care system. And so if you think of it like car insurance – which is real insurance – they would young males who get into more accidents should pay more. That’s the argument that young people who don’t get into health care should pay less. And, of course, for insurance, that’s true. But the issue for this kind of scheme isn’t what everyone pays each year; the question is what does everyone pay over a lifetime? And what’s the proper way of funding that? The proper way is with a tax, as it is with the Medicare program. That’s really the proper way, which spreads the risk that when you go to work, you start paying Medicare tax when you’re young; and no one says, well, isn’t that redistributive? Of course it is. But it’s a tax. So this whole business of being part of the private market – it’s also a fundamental misunderstanding of what it is that’s actually being discussed. It’s not actually insurance; it’s actually payment for health care.”
Question from an audience member:
If the individual mandate is deemed unconstitutional, is there still a strong legal grounding to keep the entire act or would that be struck down as well?
Wendy Mariner: ”A severability clause is a section of the act that specifies whether if something is struck down as unlawful, the whole act falls or just that provision. It can be separated, severed from the rest of the act. This act did not have such a clause. Therefore, it was up to the court to interpret what should be kept and what should be severed. And typically, you only excise — you use what I call laser surgery and take out that provision. The federal government opted for what I call friends and family — they have their little circle and said if you strike the individual mandate, you should also strike the requirement that guaranteed issue (that insurers would have to sell to anyone regardless of pre-existing condition) and community rating (which everybody in a group would have to pay the same premium), and they said that because they were closely linked. That is a dangerous argument in my opinion because why stop there? Who is the court to make a determination as to what is relevant to the insurance system? The judges do not have that expertise, and they claimed it.” (Correction: In the original audio, Mariner said “Supreme Court” but indeed meant “federal government,” as is reflected in the text above.)
For the legal nerds out there, read/listen to the entirety of last week’s Supreme Court proceedings: