Key takeaway from Tuesday’s Supreme Court hearings

March 29, 2012

Key Takeaway from Today: 

The constitutionality of the individual mandate seems up in the air after tough questions from the bench.

What Happened:

Today the Court heard oral arguments on the constitutionality of the individual mandate (IM).  The Solicitor General (SG), arguing on behalf of the Obama Administration, was faced with a barrage of questions from four of the Justices (Kennedy, Roberts, Alito, Scalia), while the fifth (Thomas) did not ask a question but is widely expected to vote against the constitutionality of the mandate.   Their questions aimed at establishing whether there are any limiting principles that apply to the mandate to purchase health insurance.  In other words, if the Court were to declare the mandate is constitutional, would they be setting a precedent that an individual mandate for any product is also constitutional, or are there aspects of health insurance that make it special in the eyes of the constitution?  The SG’s response, over and over again, was that health insurance is different than other products.

The question of whether health insurance was meaningfully “different” from other products continued to be debated during the challengers’ oral arguments.  The questions of four justices (Kagan, Sotomayor, Ginsburg, and Breyer) seemed to suggest they agreed with the argument the Solicitor General had put forth.  Despite his earlier questions, Justice Kennedy, who is often the swing vote when the court votes 5-4, left room for the possibility that health care is, in fact, different than other products:  “…And the government tells us that’s because the insurance market is unique. And in the next case, it’ll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.  That’s my concern in the case.”

Oral arguments often but not always signal where a Supreme Court justice is on a given issue.  But many commentators today suggested the challengers presented the more effective argument.

For a more detailed recap of the day’s events, go here.

And for an interesting perspective on whether insurance is different than other products, read this post on Robert Toth’s Business of Benefits blog.

John Barkett

Director, Extend Health, Inc. and former HHS analyst
Extend Health, Inc.

Visit Extend Health to use the ExtendExchange™ platform – the nation’s largest private Medicare exchange.

One Response to “Key takeaway from Tuesday’s Supreme Court hearings”

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