Day 2 Recap, Part II: The States Shine
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"The mandate represents an unprecedented effort by Congress to compel individuals to enter commerce in order to better regulate commerce." With those words Paul Clement, representing the states challenging the individual mandate as unconstitutional, set the tone for an eloquent defense of the principles of limited government and freedom.
As expected, the liberal Justices took center stage against his arguments. "[C]an't Congress make people drive faster than 45 -- 40 miles an hour on a road?" asked Justice Breyer.
But Clement was masterful in differentiating every case by pointing to the proper exercise of the government's power, as opposed to what is happening in this case. In that illustration, for example people are not forced to drive.
When presented with the crux of the government's argument by Chief Justice John Roberts, again Clement answered exceptionally. The Chief Justice pointed out that, "[T]he key to the government's argument… is that everybody is in this market." Clement responded:
I suppose the first thing you have to say is what market are we talking about? Because the government -- this statute undeniably operates in the health insurance market. And the government can't say that everybody is in that market. The whole problem is that everybody is not in that market, and they want to make everybody get into that market.
Justice Kennedy pressed Clement, "But they are in the market in the sense that they are creating a risk that the market must account for."
To what Clement responded, "When I'm sitting in my house deciding I'm not to buy a car, I am causing the labor market in Detroit to go south. I am causing maybe somebody to lose their job, and for everybody to have to pay for it under welfare. So the cost shifting that the government tries to uniquely associate with this market, it is everywhere."
Paul Clement provided very insightful illustrations, legal theory and a historical context that would be hard to refute.
Michael Carvin, representing the National Federation of Independent Business and several private individuals presented his arguments against the law next. Mr. Carvin was passionate and consistent. This exchange with Justice Bryer illustrates:
JUSTICE BREYER: "[T]he question is when you are born, and you don't have insurance, and you will in fact get sick, and you will in fact impose costs, have you perhaps involuntarily -- perhaps simply because you are a human being -- entered this particular market, which is a market for health care?
MR. CARVIN: If being born is entering the market, then I can't think of a more plenary power Congress can have, because that literally means they can regulate every human activity from cradle to grave. I thought that's what distinguished the plenary police power from the very limited commerce power.
One thing Justice Kennedy asked felt uniquely troubling for those of us who feel this mandate violated the Constitution. He said:
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.
There is real danger in the Court trying to assess or second guess policy choices. Policy should remain with the legislature and law at the Supreme Court.
Mr. Carvin had this to say, "One of the issues here is not only that they're compelling us to enter into the marketplace, they're not -- they're prohibiting us from buying the only economically sensible product that we would want. Catastrophic insurance."
It is interesting to note that the conservative justices on the court did not feel the need to aid the advocates on this side of the argument, as did the liberal justices with Mr. Verilli.
On his rebuttal, SG Verilli said, "Everyone subject to this regulation is in or will be in the health care market. They are just being regulated in advance." That actually shows that these non-actors are not in the marketplace when the government will be imposing their power on them. That should be enough to strike this mandate down. But we'll have to wait to see what the Justices say.
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