Justice Ruth Bader Ginsburg noted the limiting principle offered by some supporters is that “the people who do not buy this product make it more expensive for those who do.”
Scalia fired back, “You could say that about any product. If some people don't buy a car, other people will have to pay more to get one.”
Verrilli said the insurance-coverage provision was not “a purchase mandate,” but rather an effort to regulate something that nearly all Americans will need at some point in their lives, regardless of whether they've made arrangements to pay for it. “This is just a question of timing, because of the particular features of this market,” Verrilli said.
Scalia took issue with Verrilli's definition of “healthcare,” noting at one point, “You are not regulating healthcare, you are regulating insurance. And that is different. You are compelling somebody who isn't already in that market.”
Skeptical justices also took issue with the government's notion that compelling the purchase of comprehensive insurance was necessary, since it's usually the costly, unexpected emergency services that are most often cited as justifications for the mandate.
“It seems to me that you cannot say that everyone needs substance abuse services, or neonatal services. And you are requiring them to purchase it,” Roberts said.
Toward the end of the first hour, Justice Samuel Alito challenged Verrilli to define “as succinctly as possible” the limiting principle of Congress' power to regulate interstate commerce under the U.S. Constitution's commerce clause.
Verrilli came back with a lengthy, two-part response involving the need to plan for risks in a market that nearly everyone will use someday—a response that former Solicitor General Paul Clement, representing the 26 states suing to overturn the law—later said was “simply a description of the insurance market. It's not a limiting principle.”
A transcript of the arguments (PDF) was released shortly after the argument ended, which quoted Verrilli and Alito's full exchange:
Justice Alito: “Could you just—before you move on, could you express your limiting principle as succinctly as you possibly can? Congress can force people to purchase a product where the failure to purchase the product has a substantial effect on interstate commerce—if what? If this is part of a larger regulatory scheme? Was that it? Was there anything more?”
Verrilli: “We've got two and they are—they are different. Let me state them. First, with respect to the comprehensive scheme. When Congress is regulating—is enacting a comprehensive scheme that it has the authority to enact that the Necessary and Proper Clause gives it the authority to include regulation, including a regulation of this kind, if it is necessary to counteract risks attributable to the scheme itself that people engage in economic activity that would undercut the scheme. It's like—it's very much like Wickard in that respect, very much like Raich in that respect.
“With respect to the—considering the Commerce Clause alone and not embedded in the comprehensive scheme, our position is that Congress can regulate the method of payment by imposing an insurance requirement in advance of the time in which the—the service is consumed when the class to which that requirement applies either is or virtually is most certain to be in that market when the timing of one's entry into that market and what you will need when you enter that market is uncertain and when -- when you will get the care in that market, whether you can afford to pay for it or not and shift costs to other market participants. So those—those are our views as to - those are the principles we are advocating for and it's, in fact, the conjunction of the two of them here that makes this, we think, a strong case under the Commerce Clause.”