National Federation of Independent Businesses v. Sebelius - Opinion Announcement - June 28, 2012 (Part 3)

National Federation of Independent Businesses v. Sebelius

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Audio Transcription for Opinion Announcement - June 28, 2012 (Part 1) in National Federation of Independent Businesses v. Sebelius
Audio Transcription for Opinion Announcement - June 28, 2012 (Part 2) in National Federation of Independent Businesses v. Sebelius
Audio Transcription for Oral Argument - March 26, 2012 in National Federation of Independent Businesses v. Sebelius
Audio Transcription for Oral Argument - March 27, 2012 in National Federation of Independent Businesses v. Sebelius
Audio Transcription for Oral Argument - March 28, 2012 in National Federation of Independent Businesses v. Sebelius

Audio Transcription for Opinion Announcement - June 28, 2012 (Part 3) in National Federation of Independent Businesses v. Sebelius

Ruth Bader Ginsburg:

In the 1930s, Congress responded to the need of senior citizens for old-age and survivors' insurance.

It did so by making social security, a tax based entirely federal program.

In 2010, Congress addressed the public's need for affordable health care when sickness or injury occurs.

Congress did so by taking a path unlike the one it took for social security instead of an entirely federal program.

The Affordable Health Care Act gives states and private insurers important roles in insuring medical care for those who need it.

The question the Court must answer is whether the Constitution stops Congress from taking the course it did.

I would answer emphatically no.

I agree with the Chief Justice that Congress' power to tax and spend supports the so-called individual mandate or minimum coverage provision, but I would make that an auxiliary holding.

As I see it, Congress' vast authority to regulate interstate commerce solidly undergirds the affordable health care legislation.

I would uphold the legislation first and foremost on that ground.

Since 1937, this Court has deferred, as it should, to Congress' policymaking in the economic and social realm.

Today, a majority of the Court rules that the Commerce Clause is not equal to the task.

That ruling harks back to the era ended 75 years ago when the Court routinely thwarted legislative efforts to regulate the economy in the interest of those who labor to sustain it.

It is a stunning setback.

It should not have staying power.

The Court's majority would compare health insurance to any other commodity, broccoli for example.

If the Government can compel people to buy insurance, then there was no commodity.

The Government can't force people to purchase, so the argument goes, but health care is not like vegetables or other items one is at liberty to buy or not to buy.

All of us will need health care, some sooner, some later, but we can't tell when, where or how dire our need will be.

A healthy 21-year-old, for example, may tomorrow be the victim of an accident that leaves him or her an invalid, in need of constant and costly medical care.

Further, to get broccoli, one must pay at the counter, not so of health care.

The accident victim who cannot pay the steep price of medical services will nevertheless receive emergency and follow-up care because the law and professional ethics so require and because ours is a humane society, but people who do purchase insurance end up footing the bill.

By requiring the healthy uninsured either to obtain insurance or pay a toll, Congress sought to end this free ride.

It is shortsighted moreover to see the mandate as a decree that the hale and hearty young people subsidize care rendered to older, less healthy people.

In the fullness of time, today's young and healthy will become society's old and infirm.

Viewed over a lifespan, the cost and benefits even out.

And as I just observed, the youth who does not want insurance today may find that tomorrow she desperately needs the services insurance is designed to secure.

What the mandate does essentially is to require people to prepay for medical care to insurance instead of waiting, expecting to pay out-of-pocket at the point of service when in reality many will lack the money to cover the cost.

The Chief Justice reasons that Congress can use its commerce power to regulate something already in existence, but cannot create that something in order to regulate it.

But the interstate health insurance and health care markets are not Congress' creations.