The oral argument on the constitutionality of the Affordable Care Act (ACA) left some Supreme Court watchers worried that the law was on the ropes. Jeffrey Toobin of The New Yorker and CNN pronounced the argument “a train wreck for the Obama administration” and predicted that the law would be struck down. Justices Antonin Scalia, Samuel Alito, John Roberts and Anthony Kennedy all asked seemingly hostile questions of Solicitor General Don Verrilli, who defended the law valiantly, and no one has any doubts about where Justice Clarence Thomas stands, even though he predictably maintained his now six-year silence as a sitting justice.
But as Mark Twain might say, reports of Obamacare’s demise are greatly exaggerated. Although the conservative justices expressed considerable reservations, Justice Kennedy, the key swing vote, also noted that the costs the uninsured impose on the rest of us may be a sufficient reason to validate the individual mandate, which requires those who can afford it to purchase health insurance or pay a tax. If Kennedy votes to uphold the law, it’s possible that Chief Justice Roberts will join him, in the interest of not having the case decided by a single vote, in which case the vote would be 6-3.
The biggest challenge the administration faces in defending the law is the identification of a limiting principle. It is well settled that Congress can regulate all economic activity under the commerce clause. Those challenging the ACA maintain that if Congress can require people to “enter into commerce,” i.e., purchase health insurance against their will, there would be no limit to the government’s power. It could require people to buy broccoli, health club memberships, cellphones or burial insurance—hypotheticals posed to the solicitor general by the Court’s conservative justices. One of the most basic premises of the Constitution is that the power of the government is limited. As Justice Kennedy asked Verrilli, “Can you identify any limits on the commerce clause?” To get Kennedy’s vote, the answer to that question must be yes.
There is indeed a limiting principle, which Verrilli and several of the justices articulated during the two-hour argument: we are all inevitably participants in the healthcare market (except the Amish, and they are exempt). Unlike the markets for broccoli, health clubs and cellphones, no one can avoid the healthcare market. No one can predict when he or she will have to use it, and almost no one can afford it when he or she does use it. And because we don’t allow people to die when they can’t pay for emergency care, we provide it to them free at the hospital. Of course, nothing is truly free; hospitals and healthcare providers pass on the cost of caring for those who don’t pay to those who do, in higher fees and premiums. So the uninsured shift the cost of their care to the rest of us, increasing the average family’s premiums by a hefty $1,000 a year. The ACA’s challengers have played on the intuition that it’s unfair to require people to buy something they don’t want, but the real unfairness is when people irresponsibly fail to pay their fair share and then shift the cost of their own care to others.