Constitution

Defenders of Mandatory Health Insurance Provision Still Arguing That It's Not a Purchase Requirement

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Obamacare's requirement to purchase health insurance—the individual mandate? It doesn't really compel anyone into commerce. That's what the government is still claiming in its defense of the mandate, anyway.  

During Supreme Court arguments this morning, Solicitor General Donald Verrilli resisted the charge that the individual mandate to purchase health insurance was creating commerce—and is not actually a purchase requirement.

Asked by Justice Anthony Kennedy whether it is permissible to "create commerce in order to regulate it," Verrilli responded: "That's not what's going on here, Justice Kennedy, and we are not seeking to defend the law on that basis." Instead, he argued that "what is being regulated is the method of financing health—the purchase of health care." Later he made a similar claim: "This is not a purchase mandate," he said. "This is a law that regulates the method of paying for a service that the class of people to whom it applies are either consuming…or inevitably will consume."

In defending the mandate, Verrilli is representing the Obama administration's position that the mandate is constitutional. And he is making an argument similar to arguments made in lower courts. It's still not very convincing. And it doesn't match how President Obama talked about the mandate just a few years ago. As I noted yesterday, on the campaign trail in 2008, Obama, who opposed the mandate at the time, explained the mandate differently on several occasions. Obama explained Hillary Clinton's support of the mandate by saying that "she believes we have to force people who don't have health insurance to buy it." He also stressed the importance of understanding what what a "mandate" meant for individuals: "A mandate means that in some fashion everybody will be forced to buy health insurance." The key phrase here is "forced to buy," which makes it sound an awful lot like the purchase mandate that Verrilli claims it is not. 

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  1. That is a horrible mustache.

    And Frist?

    1. Frist?

      Yes! Tell him what he’s won, Nick!

      1. I played along and all I got was this lousy book…

        Oh, and love your email address. Classic.

  2. Surely if the government can compel its citizens to be drone fodder, it can compel them to buy health insurance!

  3. Boy, just going by orals, it’s hard to see how any justice could uphold the mandate.

  4. “service that […] people […] are either consuming…or inevitably will consume.”

    Nope. That’s a lie.
    The only way some people will ‘consume’ health insurance is being forced to buy it.

  5. Obamacare is going down like our S&P rating has. Obama is a Game Show Host and this week is the GOP coming to DC to roost you Vile & Cowardly man.

  6. “This is a law that regulates the method of paying for a service that the class of people to whom it applies are either consuming…or inevitably will consume.”

    Perhaps a nice balsamic vinagrette to go with your word salad, sir?

    1. Look, you will consume. It is inevitable.

    2. “of paying for a service that the class of people to whom it applies are either consuming…or inevitably will consume.”

      Inevitably will consume?

      What if an uninsured person is killed instantly in a car wreck?

      He doesn’t need a doctor – just an undertaker. He did not inevitably consume any healthcare.

      1. See, if he fails to consume the mandated quantities of That-Which-Must-Be-Consumed, his consumption obligations either pass to his heirs, or they escheat back to the state to be distributed fairly to those the state deems able to shoulder the burden.

        This is beginning to remind me of Pohl’s Midas World for some reason.

      2. That’s why we need to mandate burial insurance. After all, everybody dies.

  7. This is a law that regulates the method of paying for a service that the class of people to whom it applies are either consuming…or inevitably will consume.

    Yes. By mandating that they buy insurance.

    How does he think that is an answer to the question?

    1. And by “class of people,” he means every American.

  8. “Instead, he argued that “what is being regulated is the method of financing health?the purchase of health care.”

    Financing and purchasing aren’t commerce?

    Forcing anyone to engage in either one is compelling commerce.

  9. Question for those more familiar with Obamacare:
    As I understand it, the income tax forms will serve to report on whether you have health insurance or not.
    But for those with income below a certain threshold, there is no requirement to file a tax return.
    Are these people exempt from the requirement?

    1. …and therein lies the rub…those people are….!?!

  10. Everybody will consume? Really?
    So do I need insurance with OB care? I’m a guy, I’m pretty sure I’ll never need childbirth services.
    And that whole birth control pill thingy that caused such a ruckus last month? I won’t need those either.

    And what about the Amish? And Christian Scientists?
    Will Scientologists need to pay for psychiatric care they will never use?

    His argument is so transparently false I’m actually curious what convoluted logic the libs on the court will use to explain them voting for this (because you know damn well they will).

  11. Are you thinking what we’re thinking?

  12. We’re on strike!

  13. “This is not a purchase mandate,” he said. “This is a law that regulates the method of paying for a service that the class of people to whom it applies are either consuming…or inevitably will consume.”

    I was floored when I read that. The law stipulates that a taxpayer will purchase medical insurance or else pay a penalty. The law’s provisions create an incentive to purchase a personal indemnity policy against medical care relate losses but the law does not speak at all to the how, when, why, what or who of the method of payment for medical service. This is evident in that an uninsured person who currently pays out of pocket for medical care today will ostensibly be paying in the very same manner under the plan, except that that person will have paid a fine. Where is the regulation of the method of payment? The regulation of payments doesn’t exist under the plan.

    1. There was a lot of back and forth during the hearing about which market, actually, was being regulated; the market in medical services or the insurance market? The government said it was the medical maket, the respondents said it was the insurance market. Kagan said the two are inextricably linked. There didn’t seem to be any consensus in that regard. It’s hard to imagine there could be an consensus of understanding of the relevant constitutional issues when they can’t even agree on what the law regulates.

    2. One of the interesting points brought out by Mr. Carvin (I think of the Cato Institute) is an extension of the cost shifting argument made by the government. One of the government’s points is that the regulation addresses the inequity free riders impose in cost shifting their medical expenses to insured people. Mr. Carvin brought out the issue of the inequitable cost shifting the mandate creates; the subsidy of healthy young people forced to pay high aggregated premiums under guaranteed issue insurance and the subsidy of people forced to purchase mandated coverages they would not purchase for themselves (maternity care, prenatal care, drug treatment, etc.)

      1. It was an effective counter argument to the government’s position that the mandate suitably addresses the problem of cost shifting. I suppose any decision will not hang on that issue, but it is an issue the government repeatedly raised as an important consideration in design and reach of the mandate.

  14. It’s like the “light bulb ban” that doesn’t ban light bulbs at all, but merely prevents people from buying or selling them.

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