I think nothing better illustrates how poorly the oral arguments went for the Obama administration today than this exchange where Solicitor General Donald Verrilli Jr. tried to claim the individual mandate to buy insurance is not actually a government “purchase mandate.” From the transcripts:
JUSTICE SCALIA: General Verrilli, you -you could say that about buying a car. If — if people don’t buy cars, the price that those who do buy cars pay will have to be higher. So you could say in order to bring the price down, you are hurting these other people by not buying a car.
GENERAL VERRILLI: That is not what we are saying, Justice Scalia.
JUSTICE SCALIA: That’s not — that’s not what you’re saying.
GENERAL VERRILLI: That’s not — not -
JUSTICE SCALIA: I thought it was. I thought you were saying other people are going to have to pay more for insurance because you’re not buying it.
GENERAL VERRILLI: No. It’s because you’re going — in the health care market, you’re going into the market without the ability to pay for what you get, getting the health care service anyway as a result of the social norms that allow — that — to which we’ve obligated ourselves so that people get health care.
JUSTICE SCALIA: Well, don’t obligate yourself to that. Why — you know?
GENERAL VERRILLI: Well, I can’t imagine that that — that the Commerce Clause would –would forbid Congress from taking into account this deeply embedded social norm.
JUSTICE SCALIA: You — you could do it. But — but does that expand your ability to, to issue mandates to — to the people?
GENERAL VERRILLI: I — I – this is not a purchase mandate. This is a — this is a law that regulates the method of paying for a service that the class of people to whom it applies are either consuming -
JUSTICE SOTOMAYOR: General -
GENERAL VERRILLI: — or — or inevitably will consume.
Apparently a mandate to purchase health insurance is not a “purchase mandate,” which for some reason would be legally problematic. The individual mandate is a merely a mandate to purchase (insurance) that will be used as a method of paying for other things (heath care). Confused yet?
The administration had a really tough time trying to split hairs by claiming health insurance is somehow legally unique in a way that using a mandate for it is fine, while also suggesting that government cannot mandate the purchase of almost anything else. Apparently, for political reasons the administration didn’t want to argue for an unlimited Commerce Clause, but by refusing to go that route, they created serious problems for themselves in today’s oral arguments.