http://youtu.be/izzKUoxL11E

So, Day 2 of the oral arguments on the ACA challenges before the Supreme Court wrapped up yesterday, and the debates heard were significantly more lively than those of Day 1.  First on the table was the basic question of whether or not Congress has the power to say that uninsured people have to buy health insurance. 

To this, Solicitor General, Don Verilli made the point that since Congress has the power to regulate the insurance market and anything affecting it, Congress can regulate people who don’t have insurance.

This brought about the second question of if this is within Congress’ power, to regulate health care in the name of commerce, then where do we draw the line on what they can and cannot make us buy? 

Here, of course, is where things started to get sticky.  Verilli basically made two points to the effect that health insurance is not like any old commodity here.  Health insurance is different in that:

1. Everyone uses health care and most use insurance at some point in their lives.
2. Folks who don’t have insurance but who use health care end up pushing additional costs onto those who do buy insurance (in economic terms, this is considered a “negative externality”).  These costs come in the form of hidden taxes on insurance premiums, charity care provided with tax dollars, etc., which all mean higher insurance rates.

Unfortunately, Economics 101 (or Insurance 101, for that matter) does not appear to have been a required course for many of our Supreme Court justices and several of the conservative justices seemed to have a lot of trouble wrapping their heads around that second point. 

Most unfortunately for all, that the basic question of where we draw the line between what Congress can and cannot make us do is pretty near impossible to define. Several of the justices questioned the idea that if Congress is allowed to require uninsured people to buy insurance, then this will open the door to allowing them to require anyone and everyone to buy any other old commodity like broccoli or electric cars.  However, the key difference between health insurance and other commodities (as good for us as they may be) is pretty stark if you are familiar with the insurance industry.  See, if you don’t buy broccoli or an electric car, it’s not going to push additional costs on those who do. More importantly, not everyone will need broccoli or an electric car in their lifetimes, but everyone will need health care at some point in their lives. And if folks suddenly and unexpectedly find themselves wanting some broccoli or an electric car, their life will not be at risk and so nobody is going to just give it to them and then shift the costs to others like they do with healthcare.

But, again, it’s not clear that this point fully came across to all of the justices.  So I guess we’ll see what happens.

In the meantime, here are a few links to some good summaries of yesterday’s events:

• Supreme Court divided over health care mandate (CNN Justice)
• The Second Day of the Supreme Court’s Hearing on the Health Care Law (from the brilliant Henry Aaron, of the Brookings Institute)
• Day 2 at the Supreme Court: Individual Mandate and the ‘Broccoli Possibility’ (Medscape Medical News)

And of course, to lighten your spirits, please enjoy a clip from everyone’s favorite Supremes (above). 

On the agenda for tomorrow, a recap of today’s arguments on: severability and…Medicaid!