Health care goes before the court

Gregory Warner Mar 22, 2012

Kai Ryssdal: President Obama’s health care law turns 2 years old tomorrow. There probably aren’t going to be any celebrations, though, because Monday’s going to be a much bigger day for The Affordable Care Act.

The Supreme Court starts three days of hearings, key parts of which will be about the most contentious part of the law, something called the individual mandate: The requirement that everybody purchase health insurance. In essence, whether the government can force people to buy something.

The Obama adminstration maintains the law is indeed constitutional; they point to a very specific clause in the Constitution in their defense. To explain, Marketplace’s Gregory Warner took a walk in Philadelphia.

Gregory Warner: I’m walking onto the Ben Franklin Bridge that connects Pennsylvania and New Jersey. There’s a footpath.

Ted Ruger: I’ve always wanted to do this!

With me is Ted Ruger.

Ruger: I teach health law and constitutional law at the University of Pennsylvania.

And Ruger is an expert on something called the Interstate Commerce Clause in the Constitution. It’s the clause that allows the federal government to regulate economic activity between states.

Ruger: I mean, we’re walking across a bridge that very tangibly connects two states here, and we can see that. But we’re talking about an issue — health insurance — that in somewhat less visible but no less important ways, is connected among all the 50 states.

For instance, your insurance policy pays for drugs and medical devices that cross state lines. Insurance money is pooled between people in different states.

Ruger: The choice to buy insurance is an economic choice that reverberates across state lines?

Reverberates like these tractor trailers. The law is firm on that point.

Ruger: But so too is the choice to forgo insurance. Roll the dice if you will.

That’s the question before the Supreme Court: If the government can use the same power it uses to regulate these trucks to compel you to buy health insurance. Because when it comes to medical care, no man is an island. If I don’t have insurance and I get sick, I can still show up at a hospital for treatment. Those costs might get be passed on to other people. Uninsured people cost $43 billion in 2008.

Ruger: So the choice that looks like it’s your own choice could reverberate in ways that burden others.

The government argues that everybody needs to share that burden, by paying in now even when they’re healthy. So health care will be there for anyone who gets sick, just like this bridge is here when Ted Ruger and I want to walk to New Jersey. Or so we thought.

Officer on bridge: Is this a commercial project?
Warner: We’re not doing a story about the bridge, we’re just chatting on —
Officer: But you’re still using the bridge.
Warner: Well yeah, as a metaphor for health insurance.
Officer: I know but you gotta get in touch with Ed Cosuba, you know Ed?

So we got off the bridge. Then I went to talk to Lee Casey at Baker and Hostetler, one of the lawyers that originally brought this case in the lower courts on behalf of 26 states. Casey says not buying insurance is just one of many personal decisions that have an economic impact.

Lee Casey: The fact that, you know, I skipped breakfast this morning has an effect that ripples through the economy. But that doesn’t mean that Congress can regulate that, my decision, quote unquote, not to have breakfast!

The interstate commerce clause he says only allows the government to regulate economic activities.

Casey: Activities. Not decisions. Not personal ‘I’m gonna do this I’m gonna do that.’

In Casey’s view, if the federal government is allowed to make us buy insurance, it can make us buy anything. Some lawyers have pointed out that Congress did make people buy a musket and bullets — in 1792 — but in the words of the appellate court, “There’s a difference between drafting a citizen to join the military and forcing him to respond to a price quote from Aetna.”

Casey: The case law has never gone so far as to suggest that someone’s personal decision, not to enter commerce, somehow gives Congress the ability to force you into commerce so it can regulate you.

Still, the government argues that health insurance is different. That market only works if enough healthy people contribute to the pool, before they think they need it.

Tom Baker is an insurance law expert at the University of Pennsylvania Law School.

Tom Baker: You know we need a really big group for insurance to work. And in order to have a really big group, you have to have people thrown together in a way that they can’t exit.

The arguments go through Wednesday, but it’ll be late June before we know if the Supreme Court is willing to let the feds put a lock on that door.

In Philadelphia, I’m Gregory Warner for Marketplace.

We’re here to help you navigate this changed world and economy.

Our mission at Marketplace is to raise the economic intelligence of the country. It’s a tough task, but it’s never been more important.

In the past year, we’ve seen record unemployment, stimulus bills, and reddit users influencing the stock market. Marketplace helps you understand it all, will fact-based, approachable, and unbiased reporting.

Generous support from listeners and readers is what powers our nonprofit news—and your donation today will help provide this essential service. For just $5/month, you can sustain independent journalism that keeps you and thousands of others informed.