The Wall Street Journal

  • March 27, 2012, 6:38 p.m. ET

Notable & Quotable

Supreme Court Justice Samuel Alito asks whether, under the logic of ObamaCare, the government could compel Americans to buy burial services.

Supreme Court Justice Samuel Alito and Solicitor General Donald Verrilli during Tuesday’s Supreme Court hearing on the constitutionality of the ObamaCare health-insurance mandate:

Alito: Do you think there is a, a market for burial services?

Verrilli: For burial services?

Alito: Yes.

Verrilli: Yes, Justice Alito, I think there is.

Alito: All right, suppose that you and I walked around downtown Washington at lunch hour and we found a couple of healthy young people and we stopped them and we said, “You know what you’re doing? You are financing your burial services right now because eventually you’re going to die, and somebody is going to have to pay for it, and if you don’t have burial insurance and you haven’t saved money for it, you’re going to shift the cost to somebody else.”

Isn’t that a very artificial way of talking about what somebody is doing?

Verrilli: No, that—

Alito: And if that’s true, why isn’t it equally artificial to say that somebody who is doing absolutely nothing about health care is financing health care services?

Verrilli: It’s, I think it’s completely different. The—and the reason is that the, the burial example is not—the difference is here we are regulating the method by which you are paying for something else—health care—and the insurance requirement—I think the key thing here is my friends on the other side acknowledge that it is within the authority of Congress under Article I under the commerce power to impose guaranteed-issue and community rating forms, to end—to impose a minimum coverage provision. Their argument is just that it has to occur at the point of sale, and—

Alito: I don’t see the difference. You can get burial insurance. You can get health insurance. Most people are going to need health care. Almost everybody. Everybody is going to be buried or cremated at some point. What’s the difference?

Verrilli: Well, one big difference, one big difference, Justice Alito, is the—you don’t have the cost shifting to other market participants. Here—

Alito: Sure you do, because if you don’t have money then the State is going to pay for it. Or some—

Verrilli: That’s different.

Alito: Or a family member is going to pay.

Verrilli: That’s a difference and it’s a significant difference. In this situation one of the economic effects Congress is addressing is that the—there—the many billions of dollars of uncompensated costs are transferred directly to other market participants. It’s transferred directly to other market participants because health care providers charge higher rates in order to cover the cost of uncompensated care, and insurance companies reflect those higher rates in higher premiums, which Congress found translates to a thousand dollars per family in additional health insurance costs.

Alito: But isn’t that a very small part of what the mandate is doing? You can correct me if these figures are wrong, but it appears to me that the [Congressional Budget Office] has estimated that the average premium for a single insurance policy in the non-group market would be roughly $5,800 in—in 2016.

Respondents—the economists have supported—the Respondents estimate that a young, healthy individual targeted by the mandate on average consumes about $854 in health services each year. So the mandate is forcing these people to provide a huge subsidy to the insurance companies for other purposes that the act wishes to serve, but isn’t—if those figures are right, isn’t it the case that what this mandate is really doing is not requiring the people who are subject to it to pay for the services that they are going to consume? It is requiring them to subsidize services that will be received by somebody else


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