It’s been a joy reading the transcripts of the Individual Mandate debate, because everything I wanted the Individual Mandate opponents to say, they said.
JUSTICE GINSBURG: Well then, what about the determination that they can’t possibly work if people don’t have to buy insurance until they are — their health status is such that the insurance company just dealt with them on its — as it will? They’d say, I won’t insure you because you’re — you’re already sick.
MR. CARVIN: It depends what you mean by work.” It’ll work just fine in ensuring that no sick people are discriminated against. What — what — but when you do that — Congress -
JUSTICE GINSBURG: But the sick people, why would they insure early if they had to be protected if they get insurance late?
MR. CARVIN: Yes. Well, that’s — see, this is the government’s very illogical argument. They seem to be saying, look, we couldn’t just force people to buy insurance to lower health insurance premiums. That would be no good. But we can do it because we’ve created the problem. We, Congress, have driven up the health insurance premiums, and since we’ve created that problem, this somehow gives us authority that we wouldn’t otherwise have. That can’t possibly be right.
MR. CARVIN: There is no moral dilemma between having people have insurance and denying them emergency service. Congress has made a perfectly legitimate value judgment that they want to make sure that people get emergency care. Since the founding, whenever Congress has imposed that public responsibility on private actors, it has subsidized it from the Federal Treasury. It has not conscripted a subset of the citizenry and made them subsidize the actors who are being hurt, which is what they’re doing here.
MR. CARVIN: It is clear that the failure to buy health insurance doesn’t affect anyone. Defaulting on your payments to your health care provider does. Congress chose, for whatever reason, not to regulate the harmful activity of defaulting on your health care provider. They used the 20 percent or whoever among the uninsured as a leverage to regulate the 100 percent of the uninsured.