# Justices signal possible trouble for health insurance mandate **URL:** \ **Category:** Great Debates\ **Created:** [March 27, 2012, 5:11pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961 "2012-03-27T17:11:45Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [March 27, 2012, 5:11pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/1 "2012-03-27T17:11:45Z")
Uh oh > **[Justices signal possible trouble for health insurance mandate](https://www.latimes.com/politics/la-xpm-2012-mar-27-la-pn-justices-signal-possible-trouble-ahead-for-health-insurance-mandate-20120327-story.html)** > > Justices signal possible trouble for health insurance mandate “Are there any limits,” asked Justice Anthony Kennedy, one of three conservative justices whose votes are seen as crucial to the fate of the unprecedented insurance mandate. … Chief Justice John G. Roberts Jr. suggested that the government might require Americans to buy cellphones to be ready for emergencies. And Justice Antonin Scalia asked if the government might require Americans to buy broccoli or automobiles. "If the government can do this, what else can it … do?” Scalia asked. =============================================== I can’t believe my eyes. SC actually seems to be leaning to the side of questioning the unlimited power of federal government? ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [March 27, 2012, 5:19pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/2 "2012-03-27T17:19:31Z")
What are we supposedly debating here-should Supreme Court judges be allowed to ask questions about the cases brought before them? ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [March 27, 2012, 5:20pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/3 "2012-03-27T17:20:54Z")
I have never placed any emphasis on the kinds of questions the justices ask during oral arguments. I’ve seen Scalia ask extremely pointed questions that seemed to reveal his opinion lay on one side, then turn around and ask extremely pointed questions of the other party that would in isolation reveal a totally different opinion. Oral arguments are fun for reading, and make me glad I’m not a lawyer having to argue a case before the Supreme Court, but they don’t seem to reveal much. But, not being a lawyer, maybe they would reveal something to those so inclined. ---
**Author:** ![Enlightening\_Meditation](https://avatars.discourse-cdn.com/v4/letter/e/ecc23a/32.png) [@Enlightening\_Meditation](https://boards.straightdope.com/u/Enlightening_Meditation)\ **Post date:** [March 27, 2012, 6:25pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/4 "2012-03-27T18:25:17Z")
Agreed. The Justices’ questions don’t reveal much indication about their decisions. I predict a 5-4 decision to declare the Affordable Care Act unconsitutional because the 10th amendment permits the federal government to regulate commerce but not compels individuals to participate in specific commerce. ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [March 27, 2012, 6:33pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/5 "2012-03-27T18:33:18Z")
> [@Enlightening\_Meditation](#): > > Agreed. The Justices’ questions don’t reveal much indication about their decisions. > > I predict a 5-4 decision to declare the Affordable Care Act unconsitutional because the 10th amendment permits the federal government to regulate commerce but not compels individuals to participate in specific commerce. I don’t know how to draw that line. Someone who doesn’t get insurance may end up costing a lot of people a lot of money if he becomes very sick or injured. That’s commerce. And one regulation which could be enacte in response to that possibility is to require each individual to purchase health insurance. Such a requirement would be a regulation of commerce which is also compelling individuals to participate in specific types of transactions. The two do not appear to be exclusive. Anyway, I know the following is not an argument being used by the lawyers in the case, but I am convinced by the reasoning that this is no different from requiring vehicle owners to have car insurance. Sure not everyone is required to own a vehicle. But it’s literally impossible, for the great majority of people, to live without one. It’s as much of a requirement for the great majority of us, and so the requirement to get car insurance, for the great majority of us, is a requirement simpliciter, just as a requirement to get health insurance would be. ---
**Author:** ![Algher](https://avatars.discourse-cdn.com/v4/letter/a/3d9bf3/32.png) [@Algher](https://boards.straightdope.com/u/Algher)\ **Post date:** [March 27, 2012, 6:54pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/6 "2012-03-27T18:54:20Z")
> [@Frylock](#): > > I don’t know how to draw that line. > > Someone who doesn’t get insurance may end up costing a lot of people a lot of money if he becomes very sick or injured. That’s commerce. And one regulation which could be enacte in response to that possibility is to require each individual to purchase health insurance. Such a requirement would be a regulation of commerce which is also compelling individuals to participate in specific types of transactions. The two do not appear to be exclusive. > > Anyway, I know the following is not an argument being used by the lawyers in the case, but I am convinced by the reasoning that this is no different from requiring vehicle owners to have car insurance. Sure not everyone is required to own a vehicle. But it’s literally impossible, for the great majority of people, to live without one. It’s as much of a requirement for the great majority of us, and so the requirement to get car insurance, for the great majority of us, is a requirement simpliciter, just as a requirement to get health insurance would be. Car insurance requirements are done by states, not by the Feds. That is why the health care plan in Massachusetts is Constitutional - it is done by an individual state. Kennedy’s questions APPEAR to indicate that this court will find that requiring people to purchase health insurance is over the line (Kennedy being the closest thing to a swing vote on this court). ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 27, 2012, 6:55pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/7 "2012-03-27T18:55:21Z")
> [@Frylock](#): > > I don’t know how to draw that line. > > Someone who doesn’t get insurance may end up costing a lot of people a lot of money if he becomes very sick or injured. That’s commerce. And one regulation which could be enacte in response to that possibility is to require each individual to purchase health insurance. Such a requirement would be a regulation of commerce which is also compelling individuals to participate in specific types of transactions. The two do not appear to be exclusive. > > Anyway, I know the following is not an argument being used by the lawyers in the case, but I am convinced by the reasoning that this is no different from requiring vehicle owners to have car insurance. Sure not everyone is required to own a vehicle. But it’s literally impossible, for the great majority of people, to live without one. It’s as much of a requirement for the great majority of us, and so the requirement to get car insurance, for the great majority of us, is a requirement simpliciter, just as a requirement to get health insurance would be. But the requirement to buy auto insurance comes from your state. States have plenary power. They can legislate in any area without a grant of authority to do so. The federal government only has the specific powers the Constitution gives it. ---
**Author:** ![Chessic\_Sense](https://avatars.discourse-cdn.com/v4/letter/c/7c8e57/32.png) [@Chessic\_Sense](https://boards.straightdope.com/u/Chessic_Sense)\ **Post date:** [March 27, 2012, 7:03pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/8 "2012-03-27T19:03:18Z")
> [@Frylock](#): > > Someone who doesn’t get insurance may end up costing a lot of people a lot of money if he becomes very sick or injured. That’s commerce. So what? That doesn’t give the government the authority to force people into commerce. Failing to buy insurance is not commerce, and forcing people to do something is not “regulating.” > [@](#): > > But it’s literally impossible, for the great majority of people, to live without one. Only in an extremely generous definition of “literally impossible.” ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [March 27, 2012, 7:20pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/9 "2012-03-27T19:20:20Z")
> [@Algher](#): > > Car insurance requirements are done by states, not by the Feds. That is why the health care plan in Massachusetts is Constitutional - it is done by an individual state. Fair enough–I actually didn’t know that. I’ve seen car insurance brought up so many times in this context and no one’s ever mentioned that important detail before! > [@](#): > > Kennedy’s questions APPEAR to indicate that this court will find that requiring people to purchase health insurance is over the line (Kennedy being the closest thing to a swing vote on this court). But as has already been mentioned in this thread, the SC justices tend to ask pointed and difficult questions of _both_ sides. ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [March 27, 2012, 7:21pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/10 "2012-03-27T19:21:22Z")
> [@Chessic\_Sense](#): > > So what? That doesn’t give the government the authority to force people into commerce. Failing to buy insurance is not commerce, and forcing people to do something is not “regulating.” Only on very generous definitions of “commerce” and “regulating.” > [@](#): > > Only in an extremely generous definition of “literally impossible.” ---
**Author:** ![RitterSport](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rittersport/32/6326_2.png) [@RitterSport](https://boards.straightdope.com/u/RitterSport)\ **Post date:** [March 27, 2012, 7:22pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/11 "2012-03-27T19:22:12Z")
> [@Bricker](#): > > But the requirement to buy auto insurance comes from your state. States have plenary power. They can legislate in any area without a grant of authority to do so. > > The federal government only has the specific powers the Constitution gives it. I know this isn’t a constitutional argument, but regarding the ability for states to compel purchases and the related concern that if the government can compel the purchase of insurance, then it could compel the purchase of anything, I find that concept ludicrous. My reasoning is as follows: States can compel purchases. The Feds may or may not be able to do so. If governments can compel purchases, than there is no limit to what they could force you to buy. However, historically, this has NOT been a problem at the state level. Michigan has never compelled anyone to purchase a Ford or Chevy. California, that home of the nanny state and many farming interests, has not compelled anyone to purchase broccoli. And, Illinois, that national embarrassment where half the governors end up in jail, has not compelled the purchase of whatever the highest corrupting bidder has asked for. So, IMO, there may or may not be a question about whether the Feds can compel a purchase, but practically speaking, the slippery slope argument is ridiculous. ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [March 27, 2012, 7:22pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/12 "2012-03-27T19:22:39Z")
> [@Bricker](#): > > But the requirement to buy auto insurance comes from your state. States have plenary power. They can legislate in any area without a grant of authority to do so. Yeah, see my reply to **Algher**. ---
**Author:** ![Bemused](https://avatars.discourse-cdn.com/v4/letter/b/46a35a/32.png) [@Bemused](https://boards.straightdope.com/u/Bemused)\ **Post date:** [March 27, 2012, 7:30pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/13 "2012-03-27T19:30:38Z")
> [@erislover](#): > > I have never placed any emphasis on the kinds of questions the justices ask during oral arguments. I’ve seen Scalia ask extremely pointed questions that seemed to reveal his opinion lay on one side, then turn around and ask extremely pointed questions of the other party that would in isolation reveal a totally different opinion. Oral arguments are fun for reading, and make me glad I’m not a lawyer having to argue a case before the Supreme Court, but they don’t seem to reveal much. But, not being a lawyer, maybe they would reveal something to those so inclined. What they reveal is that the judges are indeed giving the matter serious thought, and they are prompting the proponent of one side to put forth the best justification possible. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [March 27, 2012, 8:00pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/14 "2012-03-27T20:00:22Z")
I have never considered that a question that needed settling, **Bemused**. ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [March 27, 2012, 8:06pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/15 "2012-03-27T20:06:58Z")
> [@Chessic\_Sense](#): > > So what? That doesn’t give the government the authority to force people into commerce. Failing to buy insurance is not commerce, and forcing people to do something is not “regulating.” Is it your opinion that the federal law forcing hospitals to cover emergency-room treatment is unconstitutional? If not, could you please explain why it is OK to compel an individual doctor to treat a person but not to compel an individual patient to buy insurance? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 27, 2012, 8:07pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/16 "2012-03-27T20:07:18Z")
I’m surprised at how hard-hitting Kennedy was. I thought that this might survive, but I see a 5-4 striking down this law. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [March 27, 2012, 9:18pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/17 "2012-03-27T21:18:33Z")
Before the end of the debate, I’d like to throw something out there: Unless it’s a 9-0 decision, something I haven’t heard anyone predict, it’s going to be the case that some of the most qualified jurists in the country will come down on the issue on the opposite side from the position you hold (“you” being anyone who holds a position on the constitutionality of the law). So any gloating about “I’m right, you’re wrong” when we hear the decision should be subdued if not absent. This is not a straightforward issue, and people who know a lot more about the Constitution than you do disagree with you. For anyone who doesn’t need that reminder, sorry for it; but in a lot of threads like this, it seems to me that a lot of people are under the delusion that the rectitude of their position is self-evident. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [March 27, 2012, 9:21pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/18 "2012-03-27T21:21:07Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Before the end of the debate, I’d like to throw something out there: > > Unless it’s a 9-0 decision, something I haven’t heard anyone predict, it’s going to be the case that some of the most qualified jurists in the country will come down on the issue on the opposite side from the position you hold (“you” being anyone who holds a position on the constitutionality of the law). So any gloating about “I’m right, you’re wrong” when we hear the decision should be subdued if not absent. Political convictions trump the Constitution in a lot of “most qualified jurists”’ minds. I have heard often enough that the Constitution is not the ideal. It is a tool. And you use the tool to bend to whatever political/social goals you have in mind. ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [March 27, 2012, 9:27pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/19 "2012-03-27T21:27:21Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Before the end of the debate, I’d like to throw something out there: > > Unless it’s a 9-0 decision, something I haven’t heard anyone predict, it’s going to be the case that some of the most qualified jurists in the country will come down on the issue on the opposite side from the position you hold (“you” being anyone who holds a position on the constitutionality of the law). So any gloating about “I’m right, you’re wrong” when we hear the decision should be subdued if not absent. > > This is not a straightforward issue, and people who know a lot more about the Constitution than you do disagree with you. > > For anyone who doesn’t need that reminder, sorry for it; but in a lot of threads like this, it seems to me that a lot of people are under the delusion that the rectitude of their position is self-evident. I used to think like this. Then I actually read what Scalia et al actually write when they make legal judgments I disagree with. Occasionally I can see it’s because they understand the law better than me. But usually, they seem to be reasoning in an extremely foolish and illogical way which I can only ascribe to political prejudices. I’m not saying their conclusions are foolish. I’m saying the _arguments_ are. They commit bizarre non-sequiters and things. Very transparently bad reasoning. My guys probably do this too but I never examined them. Reading through this stuff was, to say the least, disheartening. I kind of had an idealized and naive idea about what SC justices were like. ---
**Author:** ![Leaper](https://avatars.discourse-cdn.com/v4/letter/l/4bbf92/32.png) [@Leaper](https://boards.straightdope.com/u/Leaper)\ **Post date:** [March 27, 2012, 9:57pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/20 "2012-03-27T21:57:47Z")
So since we’re back to arguing over the individual mandate, is the question of the OP (which is, as far as I can tell, “do these oral arguments/questions indicate, on their own, that the questioners are likely to have already made up their mind to strike down the individual mandate?”) pretty much settled as “no”? [Next page](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961.md?page=2)