WASHINGTON—On its second day of arguments over whether the Affordable Care Act (ACA) is constitutional or not, on Tuesday the U.S. Supreme Court debated for two hours whether Congress can require virtually everyone to have health insurance or pay a penalty: the individual mandate.
Solicitor General Donald B. Verrilli started the proceedings by making the case for the federal government in support of the mandate. His argument centered on the power given to Congress by the Constitution’s commerce clause (Article 1, Section 8, Clause 3), which states that Congress has the power “To regulate commerce with foreign nations, and among the several states, and with the Indian Tribes.”
“Under the commerce clause, what Congress has done is to enact reforms of the insurance market, directed at the individual insurance market,” Verrilli stated, enumerating reforms “that preclude discrimination based on pre-existing conditions” and “require guaranteed issue and community rating.”
He said the individual mandate, or “minimum coverage provision,” is “necessary to carry into execution those insurance reforms.”
Verrilli said that for 80 percent of Americans, the insurance system works well—"But for more than 40 million Americans who do not have access to health insurance, either through their employer or through government programs such as Medicare or Medicaid, the system does not work.
“Those individuals must resort to the individual market, and that market does not provide affordable health insurance,” he stated. Verrilli said that Congress saw a need to design a health system and reform and regulate the market
To pay for the above, the ACA requires virtually everyone be in the insurance pool.
Justice Anthony Kennedy seemed skeptical, and interrupted with: “Can you create commerce in order to regulate it?”
“What is being regulated is the method of financing health, the purchase of health care. That, itself, is economic activity with substantial effects on interstate commerce,” replied the solicitor general.
