By The Associated Press, Associated Press
Excerpts from Tuesday's Supreme Court arguments over whether the provision in President Barack Obama's health care law that forces Americans to carry health care insurance or pay a penalty is constitutional:
Justice Ruth Bader Ginsburg: I thought a major, major point of your argument was that the people who don't participate in this market are making it much more expensive for the people who do; that is, they will get, a good number of them will get services that they can't afford at the point where they need them, and the result is that everybody else's premiums get raised. It's not your free choice just to do something for yourself. What you do is going to affect others, affect them in a major way.
Solicitor General Donald Verrilli: That absolutely is a justification for Congress's action here. That is existing economic activity that Congress is regulating by means of this rule.
Justice Antonin Scalia: General Verrilli, you could say that about buying a car. 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 Anthony Kennedy: 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.
Verrilli: I don't think so, Justice Kennedy, because it is predicated on the participation of these individuals in the market for health care services. Now, it happens to be that this is a market in which, aside from the groups that the statute excludes, virtually everybody participates. But it is a regulation of their participation in that market.
Chief Justice John Roberts: 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.
Verrilli: ... 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 ... you may think you're perfectly healthy and you may think ... that you're being forced to subsidize somebody else, but this is not a market in which you can say that there is an 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.
Justice Elena Kagan: Congress surely has within its authority to decide, rather than at the point of sale, given an insurance-based mechanism, it makes sense to regulate it earlier. It's just a matter of timing.
Paul Clement: Well, Justice Kagan, we don't think it's a matter of timing alone, and we think it has very substantive effects. Because if Congress tried to regulate at the point of sale, the one group that it wouldn't capture at all are the people who don't want to purchase health insurance and also have no plans of using health care services in the near term. And Congress very much wanted to capture those people. I mean, those people are essentially the golden geese that pay for the entire lowering of the premium.
Justice Elena Kagan: The aggregate of all these uninsured people are increasing the normal family premium, Congress says, by a thousand dollars a year. Those people are in commerce. They are making decisions that are affecting the price that everybody pays for this service.
Clement: Justice Kagan, again, with all due respect, I don't think that's a limiting principle. My unwillingness to buy an electric car is forcing up the price of an electric car. If only more people demanded an electric car there would be economies of scale, and the price would go down.
Kagan: Not necessarily, Mr. Clement. And it's different because of the nature of the health care service, that you are entitled to health care when you go to an emergency room, when you go to a doctor, even if you can't pay for it.
Justice Stephen Breyer: It turns out that 90 percent of all automobiles driving interstate without certain equipment put up pollution, which travels interstate — not 100 percent, maybe only 60 percent. Does the EPA have the power then to say you've got to have an antipollution device? It's statistical.
Michael A. Carvin: Yes, if you have a car, they can require you to have an anti-pollution (device).
Breyer: Then you're not going on statistics; you're going on something else which is what I'd like to know what it is.
Michael A. Carvin: It's this. They can't require you to buy a car with an anti-pollution device. Once you've entered the market and made a decision they can regulate the terms and conditions of the car that you do, and they can do it for all sorts of reasons. What they can't do it compel you to enter the market.
Breyer: Go back to Justice Kagan. Don't forget her question.
Kagan: I've forgotten my question.
Carvin: I was facing the same dilemma, Justice Kagan.
Ginsburg: Let me ask a question I asked Mr. Clement.
Kagan: See what it means to be the junior justice?
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