Tuesday, March 27, 2012

Key Highlights from the Supreme Court Obamacare Oral Arguments Today

The mockery that is the Obama administration's argument was exposed today for all to see.  Check out these key interactions:

JUSTICE ALITO: Do you think there is a market for burial services?

GENERAL VERRILLI: For burial services?


GENERAL VERRILLI: Yes, Justice Alito, I think there is.

JUSTICE ALITO: All right. Suppose that you and I walked around downtown Washington at lunch hour and we found a couple of healthy young people and we stopped them and we said: You know what you're doing? You are financing your burial services right now because eventually you're going to die, and somebody is going to have to pay for it, and if you don't have burial insurance and you haven't saved money for it, you're going to shift the cost to somebody else.

Isn't that a very artificial way of talking about what somebody is doing?


JUSTICE ALITO: And if that's true, why isn't it equally artificial to say that somebody who is doing absolutely nothing about health care is financing health care services.

GENERAL VERRILLI: It's -- I think it's completely different. The -- and the reason is that the burial example is not -- the difference is here you are regulating the method by which you are paying for something else -- health care -- and the insurance requirement I think -- I mean, the key thing here is my friends on the other side acknowledge that it is within the authority of Congress under Article I under the commerce power to impose guaranteed-issue and community-rating reforms, to end -- to impose a minimum coverage provision. Their argument is just that it has to occur at the point of sale, and -

JUSTICE ALITO: I don't see the difference. You can get burial insurance. You can get health insurance. Most people are going to need health care, almost everybody. Everybody is going to be buried or cremated at some point.

GENERAL VERRILLI: Well, one big difference -

JUSTICE ALITO: What's the difference?

GENERAL VERRILLI: One big difference, Justice Alito, is the -- you don't have the cost shifting to other market participants. Here -

JUSTICE ALITO: Sure you do, because if you don't have money, then the State is going to pay for it or some -

GENERAL VERRILLI: But that's different.


JUSTICE ALITO: But isn't that really a small part of what the mandate is doing? You can correct me if these figures are wrong, but it appears to me that the CBO has estimated that the average premium for a single insurance policy in the non-group market would be roughly $5,800 in -- in 2016.

Respondents -- the economists who have supported the Respondents estimate that a young, healthy individual targeted by the mandate on average consumes about $854 in health services each year. So the mandate is forcing these people to provide a huge subsidy to the insurance companies for other purposes that the Act wishes to serve, but isn't -- if those figures are right, isn't it the case that what this mandate is really doing is not requiring the people who are subject to it to pay for the services that they are going to consume? It is requiring them to subsidize services that will be received by somebody else.


CHIEF JUSTICE ROBERTS: Well, but it's critical how you define the market. If I understand the law, the policies that you're requiring people to purchase involve -- must contain provision for maternity and newborn care, pediatric services, and substance use treatment. It seems to me that you cannot say that everybody is going to need substance use treatment -substance use treatment or pediatric services, and yet that is part of what you require them to purchase.

GENERAL VERRILLI: Well, it's part of what the statute requires the insurers to offer. And I think the reason is because it's trying to define minimum essential coverage because the problem -

CHIEF JUSTICE ROBERTS: But your theory is that there is a market in which everyone participates because everybody might need a certain range of health care services, and yet you're requiring people who are not -- never going to need pediatric or maternity services to participate in that market.


GENERAL VERRILLI: The -- with respect to what insurance has to cover, Your Honor, I think Congress is entitled the latitude of making the judgments of what the appropriate scope of coverage is. And the problem here in this market is that for -- you may think you're perfectly healthy and you may think that you're not -- that you're being forced to subsidize somebody else, but this is not a market in which you can say that there is a immutable class of healthy people who are being forced to subsidize the unhealthy. This is a market in which you may be healthy one day and you may be a very unhealthy participant in that market the next day, and that is a fundamental difference, and you're not going to know in which -

CHIEF JUSTICE ROBERTS: I think you're posing the question I was posing, which is that doesn't apply to a lot of what you're requiring people to purchase. Pediatric services, maternity services. You cannot say that everybody is going to participate in the substance use treatment market and yet you require people to purchase insurance coverage for that.

GENERAL VERRILLI: Congress has got --Congress is enacting economic regulation here. It has latitude to define essential -- the attributes of essential coverage. That doesn't -- that doesn't seem to me to implicate the question of whether Congress is engaging in economic regulation and solving an economic problem here, and that is what Congress is doing.

JUSTICE ALITO: Are you denying this? If you took the group of people who are subject to the mandate and you calculated the amount of health care services this whole group would consume and figured out the cost of an insurance policy to cover the services  that group would consume, the cost of that policy would be much, much less than the kind of policy that these people are now going to be required to purchase under the Affordable Care Act?

GENERAL VERRILLI: Well, while they are young and healthy, that would be true. But they are not going to be young and healthy forever. They are going to be on the other side of that actuarial equation at some point. And of course, you don't know which among that group is the person who's going to be hit by the bus or get the definitive diagnosis. And that -

JUSTICE ALITO: The point is -- no, you take into account that some people in that group are going to be hit by a bus, some people in that group are going to unexpectedly contract or be diagnosed with a disease that -- that is very expensive to treat. But if you take their costs and you calculate that, that's a lot less than the amount that they are going to be required to pay.

So that you can't just justify this on the basis of their trying to shift their costs off to other people, can you?

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