Opponents of the healthcare reform law pushed through by President Obama have been asking a simple question for two years: If the government can require citizens to purchase health insurance, what can’t it do? Shockingly, the administration was unprepared to answer that question today before the Supreme Court.
Sarar Kliff for Wonkblog (“In mandate hearing, a battle over ‘limiting principle’“):
“Limiting principle” is a phrase that came up a lot in the Supreme Court Tuesday morning – 15 times, according to the transcript. It’s a legal concept you’ll probably hear a lot about in this afternoon’s analysis.
When courts review a new application of Congress’s constitutional authority, they historically wanted to see the government articulate a clear limit to those powers – they look for, in legal jargon, a “limiting principle.”
“If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive,” writes SCOTUSBlog‘s Lyle Denniston. ” But if he does not, the mandate is gone.”
The core question, for Kennedy and the eight other Justices, seemed to be: if Congress could require individuals to purchase health insurance, where do the limits of power stop? Here’s one part of the arguments, where Justice Kennedy questions Verrilli particularly aggressively on the point of where, exactly, Congress’ limit of powers ends:
JUSTICE KENNEDY: Can you identify for us some limits on the Commerce Clause?
SOLICITOR GENERAL VERRILLI: Yes. The — the rationale purely under the Commerce Clause that we’re advocating here would not justify forced purchases of commodities for the purpose of stimulating demand. We — the — it would not justify purchases of insurance for the purposes — in situations in which insurance doesn’t serve as the method of payment for service
JUSTICE KENNEDY: But why not? If Congress —if Congress says that the interstate commerce is affected, isn’t, according to your view, that the end of the analysis.Cuccinelli recalled Chief Justice John Roberts asking why health insurance is unique as something the government can require Americans to purchase. Justice Antonin Scalia then chimed in, asking whether the government could require Americans to exercise, a regulation that would presumably also lead to improved health.
“If you can compel people to buy health insurance because health care is unique,” Cuccinelli recalls Roberts asking, “Why aren’t there a bunch of other things that you can compel as well?”
Supporters the law agreed that limiting principle seemed to be a key issue that the Justices were grappling with the arguments.
“What they’re wrestling with, is the question of if this is allowed, is there no limit to what Congress can do under the Commerce Clause?” said Sen. Tom Harkin (D-Iowa) who attended the hearings.
Now, as we’ve noted here countless times in the debates on this matter, there’s zero doubt that Congress has the power to accomplish the same goal in a way that’s only technically different under the taxation power. That is, they could simple raise everyone’s tax bill by the amount of the current penalty for being uninsured and issue them a 100 percent credit for years in which they were covered by insurance. But they wouldn’t have been able to get 60 votes in the Senate for that, so they settled on the mandate mechanism instead.
Given how often it has been asked in the debate, that this question was going to arise was a given. It’s shocking that Verrilli didn’t have a more compelling answer at the ready.
