Day two recap: The individual mandate on trial

Day two of the Supreme Court arguments on the Affordable Care Act was considered the “main event” of the proceedings as the two sides debated the constitutionality of the individual mandate.

Solicitor General Donald Verrilli argued before the court that the individual mandate is acceptable in the health care sector because of its unique nature.  The argument was not well received with Justice Scalia:

“Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to be proper. And we’ve held in two cases that something that was reasonably adapted was not proper, because it violated the sovereignty of the States, which was implicit in the constitutional structure.”

The argument also drew questions from Justice Anthony Kennedy on whether the federal government can force individuals to carry a product by penalty of a fee. Justice Kennedy referred to a “very heavy burden of justification” on the United States to show where the Constitution can authorize the mandate.

Paul Clement, arguing on behalf of the states, continued to criticize the individual mandate and the power of the federal government, saying that if the government can force individuals to purchase health care, it can force individuals to purchase other products as well.

Chief Justice John Roberts noted the key point of the argument by the United States is that every individual is already a part of the health care market, and the government is trying to regulate how it is financed.

Arguing on behalf of the National Federation of Independent Businesses (NFIB), attorney Michael Carvin argued that the Affordable Care Act was not a regulation on commerce, but rather an unconstitutional extension of government power.

On Wednesday, the sides appeared before the Supreme Court to debate the provisions in the law that expand the federal Medicare program. Check back Thursday for a recap of day three.

For more information on the proceedings from a free-market, limited-government perspective, follow these links:

• For a schedule of the three days of oral arguments in the case (provided by the Washington Examiner) click here.
• For ongoing coverage each day, go to PPACAction.com, a new microsite from the Texas Public Policy Foundation. It will provide a daily preview of that day’s argument plus a synopsis of major news coverage; a recap of the day’s argument plus a special daily edition of “Texas PolicyCast,” with audio excerpts from the courtroom and expert analysis; real-time analysis; links to research, and TPPF's three amicus briefs to the U.S. Supreme Court in this case.
• The Heritage Foundation has outlined the impacts on Americans if the federal health care law is implemented. Click here to learn more.
• The Cato Institute has a wealth of coverage, from analyses to testimony to briefs, here: www.cato.org/universal-health-care.