Michael E. Rosman
General Counsel, The Center for Individual Rights
Today, I'd like to discuss General Verrilli's effort to define a limiting principle to his theories.
When pressed, General Verrilli insisted that his theories had one and relied on the tried and true commerce clause formulation that Congress must be regulating economic activity with a substantial effect on interstate commerce. (Tr. 30.) But if not buying something was "economic activity," that still left open the possibility that Congress could require people to purchase any product at all, a suggestion that made some Justices uncomfortable. To avoid that possibility, General Verrilli insisted (until he summed up and perhaps slipped a little) that Congress was not regulating the purchase and sale of insurance, and not mandating a purchase or creating commerce, but rather regulating the financing and payment associated with existing health care transactions. (Tr. 4-5, 16-17, 18, 20, 42.)
General Verrilli may have backed off a bit from this position in summarizing his Necessary and Proper argument (Tr. 44, asserting somewhat vaguely that Congress can regulate "economic activity" that undermines a comprehensive scheme), but for the most part his insistence that he was "not advocating for a power that would allow Congress to compel purchases" (Tr. 42) strongly suggests that he did not want to argue that a decision to not purchase something was "economic activity" within Congress's normal Commerce Clause authority.
Thus, when asked about other possible product or service mandates, either cell phones (as a kind of emergency services insurance, Tr. 6-7), burial insurance (Tr. 7-8), or exercise (Tr. 40), General Verrilli insisted that all of those cases were distinguishable. (Cell phones because there is no "market" in emergency services being affected, burial insurance because costs of burial are not passed on to other market participants, and exercise because it does not affect how people pay for health insurance or anything else.) Some of these distinctions struck me as strained; I find it hard to believe that people never (excuse the pun) stiff funeral homes and that those businesses do not have to pass those costs on to other customers. I am also unsure why Congress would be limited to regulating the method of payment. If exercise would reduce the need for health care services, or for that matter lower the cost of health insurance about to be purchased, why wouldn't that be a proper exercise of Congress's power over interstate commerce? But I give General Verrilli credit for the effort.
The problem with the effort is the one that I mentioned in my last blog. Congress has not regulated how people pay for health care services. While requiring that they have insurance surely provides an incentive for them to pay for those services with insurance, nothing in the statute precludes them from paying by other means (or, for that matter, just refusing to pay). Professor Metzger states that there is a "link" between requiring insurance and the method of payment. That's surely correct, but efforts to reduce violent crime can affect insurance rates in general and the Court has not found that link sufficient to uphold such efforts. To bring that argument home, one needs to argue that which General Verrilli avoided: that the command to purchase is a regulation of economic activity.
As a rule, I avoid making predictions. And, as the only member of this discussion without the title "Professor," I will not offer much in the way of commentary on others' views. Indeed, I'll confess that, as a member of the laity, I cannot even understand Professor Chemerinsky's arithmetic. On Tuesday, he said that the "decision will not be close." Today, he writes that "the outcome almost surely depends on Justice Anthony Kennedy," which is "what everyone expected all along." And the vote will be "6-3, with Chief Justice Roberts writing for the majority" to reject the challenge. Hmmm. Has the Chief given Justice Kennedy his proxy?