The U.S. Supreme Court held oral arguments on Tuesday on the constitutionality of the minimum coverage provision of the Patient Protection and Affordable Care Act (ACA). Not since the New Deal has the Supreme Court considered such a fundamental challenge to the federal government’s power to regulate individuals. It is not surprising, therefore, that the most intriguing exchanges centered around whether and how the Commerce Clause could authorize the so-called individual mandate without recognizing an unlimited federal power to regulate individuals. In other words, the oral debate was largely a search for a limiting principle.

The question before the Justices was “whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision,” which requires non-exempted individuals to maintain a minimum level of health insurance in 2014 and thereafter or pay a tax penalty.

Is the Mandate Effectively a Tax?

The government’s lawyer, Solicitor General Donald Verrilli, Jr., tried to argue that Congress’s constitutional power to tax authorized the tax penalty imposed on those who fail to get insurance coverage. (U.S. Constitution, Art. I, §8, clause 1) There is broad, though not unanimous, agreement that if the mandate and penalty provisions constitute a tax, they are constitutional under Congress’s power to tax. Paul Clement, attorney for respondent Florida and other states, argued that even if the penalty is a tax, it not a constitutionally permissible one.

None of this may matter. Monday’s oral argument, in which several Justices referred to the tax penalty as a penalty and not a tax, cast doubt on the likelihood that the Court will classify the mandate under the taxing power. On Tuesday, when the Solicitor General noted that some fees have been treated as taxes, Justice Scalia responded that he did not think “there is as much difference between a fee and tax as there is between a penalty and a tax.” Then, perhaps drawing on personal experience, Justice Scalia quipped that “fees for a hunting license, everybody knows those are taxes.”

Does the Commerce Power Have Limits?

The other source of constitutional authority for the minimum coverage provision is the Commerce Clause, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”  (U.S. Constitution, Art. I, §8, clause 3) Predictably, the questions focused on how to define the scope and limits of that power. Opponents of the ACA argue that if the federal government can require people to buy health insurance, there is no practical limit to what it else it could require. Mr. Clement summarized the states’ position succinctly: “The mandate represents an unprecedented effort by Congress to compel individuals to enter commerce in order to better regulate commerce.”

Much of the entire oral argument, therefore, was devoted to the search for a limiting principle, a standard that would distinguish federal power to require individuals to buy health insurance from the sovereign power of the states to compel individuals to take other types of action. The Solicitor General had barely begun his argument when Justice Kennedy asked “Can you create commerce in order to regulate it?”  Justice Breyer seemed to think so and cited the creation of a national bank, which was upheld by the Supreme Court in 1819.  [McCulloch v. Maryland, 17 U.S. 316 (1819)]

Justice Kennedy, often a deciding vote in close cases, suggested discomfort with equating regulating people who were already participating in some market and requiring people to buy something in the market. He found it “concerning,” because “it requires the individual to do an affirmative act.” He added, “That changes the relationship of the Federal Government to the individual in a fundamental way.”

In contrast, Justice Breyer suggested that surely the federal government could require individuals to be immunized against a dangerous contagious disease that was spreading across the country, because of the effect of an epidemic on interstate commerce. That would entail requiring people doing nothing to take action involuntarily. Nonetheless, Justice Kennedy asked the Solicitor General several times for a limiting principle: “Assume for the moment that this is unprecedented, the affirmative duty to go into commerce. If that is so, do you not have a heavy burden of justification?” “Can you identify for us some limits on the Commerce Clause?”  Justice Roberts later reprised the question asking “whether or not there are going to be limits in the Federal power.”

The Solicitor General’s responses were complex, if not always clear or to the point. He summarized Congress’s reasons for enacting the mandate: Everyone needs and uses health care, so everyone is already in the health care market. “Health insurance has become the predominant means of paying for health care in this country.” That “market does not provide affordable health insurance.” Without affordable health insurance, millions of Americans cannot get health care, while millions more receive “free care” that is paid for by increased premiums paid by the insured and government payments. The ACA uses insurance as a method of spreading the costs to pay for care, because people cannot predict when they will need expensive care.  Mr. Clement characterized the explanation as “with all due respect, simply a description of the insurance market.”

Broccoli and Car Insurance, Again

While discussing how to distinguish health insurance from other markets, Justice Scalia introduced broccoli, saying  “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.” The Solicitor General made clear that the need or even desire for broccoli is neither unpredictable nor involuntary, unlike the need for health care. He might have added that the price of goods like broccoli is also reasonable enough that costs do not need to be spread by insurance. Most important, no one will give you broccoli if you can’t pay for it, whereas physicians and hospitals do provide at least emergency care, regardless of ability to pay.

A similar comparison of health insurance and car insurance arose several times. Mr. Clement argued that car insurance was only justifiable because people had already voluntarily bought a car and were therefore in that market. No one mentioned that no one will give you a car for free, no matter how much you may need one. Moreover, as the Solicitor General pointed out, no one purchases health insurance for its own sake; it is only useful to pay for health care. Justice Roberts appeared unpersuaded. He asserted that cars were purchased not for their own sake, but as a  means of transportation and broccoli to “cover the need for food.” That is rather odd reasoning. If true, then health care is not purchased for its own sake, but to satisfy the need for treatment, still a step removed from health insurance.

It’s Just a Matter of Timing

Perhaps the best received argument was that the requirement to buy health insurance today was no different from a requirement to buy it “at the point of sale.” No one disputed Congress’s power to require individuals to buy insurance when they arrive at the hospital for care. Justice Kagan agreed with the Solicitor General that it was “just a matter of timing.” She noted that “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.”

There was also less disagreement than might have been expected over whether the “commerce” at issue was the market for health insurance or the market for health care. Although Mr. Clement and counsel for respondent National Federation of Independent Business, Michael Carvin, insisted that individuals were being required to buy only an insurance product, only Justice Scalia expressly voiced agreement with that view.

Is a Limiting Principle Necessary?

The Chief Justice worried that “once we say that there is a market and Congress can require people to participate in it, as some would say – or as [the Solicitor General] would say, that people are already participating in it – it seems to me that we can’t say that there are limitations on what Congress can do under its commerce power. . . and you can regulate that market in any rational way.” That may very well be the most plausible conclusion, even though Justices Scalia, Thomas and perhaps other Justices find it antithetical to their conceptions of federal power.

The Solicitor General’s attempts at limiting principles seem more in line with Chief Justice Marshall’s broad definition of the Commerce Power, which was “the power to regulate; that is to prescribe the rule by which commerce is to be governed.” As former Solicitor General Charles Fried has argued, the commerce power is plenary and really has no limit as long as it is confined to “commerce.” Since health care and health insurance are indisputably part of commerce, Congress is free to enact rational rules to make affordable care available to everyone.

The Justices are certainly aware of the historical importance of their decision. If they are reluctant to dismantle the ACA and cannot come to terms on any limiting principle, then perhaps they might conclude that a limiting principle beyond the definition of commerce is irrelevant.

Editor’s note: Wendy Mariner co-organized (and signed) the “Brief of 104 Health Law Professors as Amici Curiae in Support of Petitioners,” submitted January 13, 2012, in United States Department of Health and Human Services et al. v. Florida et al. (Case No. 11-398), with Charles Fried as Counsel of Record. For more on the debate over the constitutionality of the Affordable Care Act’s minimum coverage requirement — or individual mandate — and day two of the Supreme Court’s oral arguments concerning the ACA, see additional Health Affairs Blog posts by Marc Rodwin, William Sage, Alice Noble and Mary Ann Chirba, Sara Rosenbaum, and Timothy Jost.