The 12 Questions That Could Kill the Individual Mandate

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A review of the justices' creative, and potentially crucial, questions from today's hearing

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Today was the most important day in the history of the individual mandate. And it might be the day the individual mandate died, based on the conservative justices' creative and painstaking assault on the law. "This was a train wreck for the Obama administration," Jeffrey Toobin told CNN. "This law looks like it's going to be struck down."

Let's go to the tape.

Here is the transcript of the Supreme Court arguments this morning. It is a remarkable, entertaining, triumphant (for some), and aggravating (for others) document. The four conservative justices -- Thomas doesn't say a word -- launch a cannonade of metaphors and arguments by analogy that Attorney General Verrilli often fails to deflect or combat. Over the course of the hour, health insurance was compared to cell phones, broccoli, exercise, and cars. Below are 12 of the most withering questions, in chronological order, with some context from me in italics.

Justice Kennedy: A fundamental question: Can you create economic activity to regulate it?

"Can you create commerce in order to regulate it?"

Chief Justice Roberts: Everybody needs access to emergency assistance. If you can make people buy health insurance, can you make people buy cell phones for safety?

"So can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? You can just dial 911 no matter where you are?"

Justice Alito: Everybody dies. If you can make people buy health insurance, can you make people buy burial insurance?

"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? 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. What's the difference?"

Justice Scalia: Everybody needs to eat. If you can make people buy health insurance, can you make people buy broccoli?

"Everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli."

Chief Justice RobertsSeriously, why isn't a health insurance mandate like a broccoli or car mandate?

"You say health insurance is not purchased for its own sake, like a car or broccoli; it is a means of financing health care consumption and covering universal risks. Well, a car or broccoli aren't purchased for their own sake, either. They are purchased for the sake of transportation or in broccoli, covering the need for food. I don't understand that distinction."

Justice Scalia: If people don't buy cars, Scalia says, the price that those who do buy cars pay will have to be higher. Hmm. Higher demand usually raises prices. The mandate is about diversifying insurance pools to lower risk.

"You were saying other people are going to have to pay more for insurance because you're not buying it ... If people don't buy cars, the price that those who do buy cars pay will have to be higher. So you could say in order to bring the price down, you are hurting these other people by not buying a car."

Justice Kennedy: Perhaps the most important paragraph of the morning: Kennedy's objections in a nutshell.

"The reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don't have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that's generally the rule. And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way."

Chief Justice Roberts: Roberts says a health insurance mandate forces people to buy access to care they will absolutely never need

"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. 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."

Justice Alito: Aren't you forcing young people to pay much more for their insurance than they might otherwise get if they participated in an individual market? (Another argument I don't fully understand since so much insurance is bought through an employer.)

"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?"

Justice Scalia: People need to exercise just like they need insurance. Why not an exercise mandate?

"The something else is everybody has to exercise, because there's no doubt that lack of exercise cause -- causes illness, and that causes health care costs to go up. So the Federal government says everybody has to -- to join a -- an exercise club. That's -- that's the something else."

Justice Scalia: Is it a tax or isn't it?

"You're making two arguments. Number one, it's a tax; and number two, even if it isn't a tax, it's within the taxing power. I'm just addressing the first ... You're saying that all the discussion we had earlier about how this is one big uniform scheme and the Commerce Clause blah, blah, blah,it really doesn't matter. This is a tax and the Federal Government could simply have said, without all of the rest of this legislation, could simply have said everybody who doesn't buy health insurance at a certain age will be taxed so much money, right? ... Extraordinary."

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Derek Thompson is a senior editor at The Atlantic, where he writes about economics, labor markets, and the entertainment business.

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