Sergio Munoz

By Sergio Eduardo Muñoz, Senior Policy Analyst, Health Policy Project, Office of Research, Advocacy, and Legislation, National Council of La Raza. This post is part of an ACSblog online symposium on oral argument in HHS v. Florida.

Yesterday’s Day 2 Affordable Care Act (ACA) arguments at the Supreme Court involved the centerpiece of both health care reform and its legal challenges by examining whether the individual responsibility requirement to carry health insurance exceeds Congress’s powers under the Constitution. And unfortunately, it didn’t take long for it to become painfully clear that this question of enormous consequence may very well split down ideological lines. During his confirmation hearings, Chief Justice Roberts used the analogy that a federal judge is like an umpire, objectively calling balls and strikes under commonly accepted rules. If anything good came out of Tuesday’s acrimonious argument, maybe we can finally put that misleading visual to rest. The Justices’ sharp comments on the constitutionality of the responsibility requirement made clear that not only are the Court’s ideological wings calling these pitches differently, it’s not even clear they’re playing the same game.

Before describing today’s fireworks, however, some cold facts underlying today’s arguments and what the responsibility requirement does and does not do. If the responsibility requirement was in effect today, also referred to as the “individual mandate,” only 7% of the country under-65 would have to newly buy insurance or pay the tax penalty for non-compliance. Of those, over half would receive generous subsidies to assist in the purchase of insurance in newly-regulated markets. The vast majority of Americans would not have to decide how to satisfy the responsibility requirement because they already have insurance or would be exempt from purchase because of the economic strain. Take the Hispanic community, for example. Considering uninsured Latino children in comparison to other groups are disproportionately underenrolled in Medicaid and CHIP, despite the fact that Hispanics are about two times more likely than Whites to qualify for public health insurance, the odds are slim that this community would have to choose between new insurance and the assessment. This truth, unfortunately, has not been successfully communicated.