National Federation of Independent Businesses v. Sebelius - Oral Argument - March 27, 2012

National Federation of Independent Businesses v. Sebelius

Media for National Federation of Independent Businesses v. Sebelius

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

John G. Roberts, Jr.:

We will continue argument this morning in Case 11-398, the Department of Health and Human Services v. Florida.

General Verrilli.

Donald B. Verrilli, Jr.:

Mr. Chief Justice, and may it please the Court:

The Affordable Care Act addresses a fundamental and enduring problem in our health care system and our economy.

Insurance has become the predominant means of paying for health care in this country.

For most Americans, for more than 80 percent of Americans, the insurance system does provide effective access.

Excuse me.

But for more than 40 million Americans who do not have access to health insurance either through their employer or through government programs such as Medicare or Medicaid, the system does not work.

Those individuals must resort to the individual market, and that market does not provide affordable health insurance.

It does not do so because, because the multibillion dollar subsidies that are available for the, the employer market are not available in the individual market.

It does not do so because ERISA and HIPAA regulations that preclude, that preclude discrimination against people based on their medical history do not apply in the individual market.

That is an economic problem.

And it begets another economic problem.

Antonin Scalia:

Why aren't those problems that the Federal Government can address directly?

Donald B. Verrilli, Jr.:

They can address it directly, Justice Scalia, and they are addressing it directly through this, through this Act by regulating the means by which health care, by which health care is purchased.

That is the way this Act works.

Under the Commerce Clause, what, what Congress has done is to enact reforms of the insurance market, directed at the individual insurance market, that preclude, that preclude discrimination based on pre-existing conditions, that require guaranteed issue and community rating, and it uses -- and the minimum coverage provision is necessary to carry into execution those insurance reforms.

Anthony M. Kennedy:

Can you create commerce in order to regulate it?

Donald B. Verrilli, Jr.:

That's not what's going on here, Justice Kennedy, and we are not seeking to defend the law on that basis.

In this case, the -- what is being regulated is the method of financing health, the purchase of health care.

That itself is economic activity with substantial effects on interstate commerce.

And--

Antonin Scalia:

Any self purchasing?

Anything I -- you know if I'm in any market at all, my failure to purchase something in that market subjects me to regulation.

Donald B. Verrilli, Jr.:

--No.

That's not our position at all, Justice Scalia.

In the health care market, the health care market is characterized by the fact that aside from the few groups that Congress chose to exempt from the minimum coverage requirement -- those who for religious reasons don't participate, those who are incarcerated, Indian tribes -- virtually everybody else is either in that market or will be in that market, and the distinguishing feature of that is that they cannot, people cannot generally control when they enter that market or what they need when they enter that--

John G. Roberts, Jr.:

Well, the same, it seems to me, would be true say for the market in emergency services: police, fire, ambulance, roadside assistance, whatever.

You don't know when you're going to need it; you're not sure that you will.

But the same is true for health care.