The individual mandate portion of the law goes into effect on January 1, 2014. It requires virtually all Americans to obtain health insurance or pay a fine. On Tuesday, the Supreme Court heard two hours of oral argument.

The government’s ability to require everyone to buy insurance depends in part on another provision of the Act that goes into effect at the same time, which requires health insurance companies to provide affordable insurance for everyone, even people who had previously been unable to obtain insurance because they suffer from “pre-existing conditions.”

The Court will consider whether the individual mandate is in fact constitutional.  This issue boils down to whether Congress has the power to enact a law requiring everyone in the United States to buy health insurance or pay a penalty.

The Obama Administration argues that it does under the Constitution’s Commerce Clause.  They argue that the Commerce Clause authorizes Congress to “regulate Commerce . . . among the states.”

The government’s primary argument is based on the idea that an individual’s decision not to buy health insurance affects interstate commerce because that person will inevitably end up needing medical care and if this individual does not have health insurance, will ultimately be unable to pay the health bill. This cost will then be absorbed by health care providers, who will then pass that cost to the insurance companies, who in turn pass it to the people who do buy insurance.

The challengers take a very different view.  They characterize the individual mandate as an unprecedented effort by Congress to regulate inactivity (in the form of the refusal to buy health insurance).  If Congress can require everyone in the United States to buy insurance, they argue, there would be virtually no limits to what Congress can rely on the Commerce Clause to do. It’s a slippery slope argument.

Division of Time:
1 hour: U.S. Solicitor General Donald Verrilli
30 minutes: 26 states (Paul Clement)
30 minutes: National Federation of Independent Business (Michael Carvin)

The 26 States in the lawsuit before the Supreme Court are: Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Washington, Wisconsin and Wyoming.