The Constitutional Question for Obamacare

photo courtesy of facebook.com/Obamacare411

Oral arguments were heard two weeks ago on whether the minimum coverage provision of the Health Care Reform Act, passed by congress during the Obama presidency, is constitutional. (Find oral arguments here). Constitutional on this issue is being judged, inter alia, on whether the law regulates existing commerce or forces non-market participants to enter the health care insurance market.

The first question for General Verrilli, representing the US Department of Health and Human Services and defending the constitutionality of the law, asks whether everyone in the country is already in the healthcare market or not. His response is something like, it’s empirically more probable than not that everyone will be in the market.

The question then becomes whether this proposition justifies congress in requiring individuals to preemptively purchase financing for their participation in that market in the form of health insurance. Verrilli continues that Congress has the power to regulate interstate commerce under Article I, with both sides conceding that under this power Congress is able to require individuals to pay for any actual, realized health services with an insurance policy.

The question then becomes, in order to effectuate that regulatory policy, is it necessary and proper for congress to require every individual to purchase such financing before they actually need it? Verilli responds that yes, it is necessary because an individual will not be able to purchase such financing, i.e. insurance, after they are injured.

Scalia seems to think that while possibly necessary, such a requirement is not proper.