MR. CLEMENT:If you do not have the individual mandate to force people into the market then community rating and guaranteed-issue will cause the cost of premiums to skyrocket. We can debate the order of magnitude of that but we can't debate that the direction will be upward. We also can't debate -*
JUSTICE SOTOMAYOR: Counsel, that may well be true. The economists are going back and forth on that issue, and the figures vary from up 10 percent to up 30. We are not in the habit of doing the legislative findings. What we do know is that for those States that found prices increasing, that they found various solutions to that. In one instance, and we might or may not say that it's unconstitutional, Massachusetts passed the mandatory coverage provision. But others adjusted some of the other provisions. Why shouldn't we let Congress do that, if in fact, the economists prove, some of the economists prove right, that prices will spiral? What's wrong with leaving it to — in the hands of the people who should be fixing this, not us?
MR. CLEMENT: Well, a couple of questions -* a couple of responses, Justice Sotomayor. First of all, I think that it's very relevant here that Congress had before it as examples some of the States that had tried to impose guaranteed-issue and community rating and did not impose an individual mandate. And Congress rejected that model. So your question is quite right in the saying that it's not impossible to have guaranteed-issue and community-rating without an individual mandate. But it's a model that Congress looked at and specifically rejected. And then, of course, there is Congress's own finding, and their finding, of course, this is (i), which is 43(a)of the government's brief in the appendix, Congress specifically found that having the individual mandate is essential to the operation of guaranteed-issue and community-rating.
JUSTICE SOTOMAYOR: That's all it said it's essential to. I mean, I'm looking at it. The exchanges, the State exchanges are information- gathering facilities that tell insurers what the various policies actually mean. And that has proven to be a cost saver in many of the States who have tried it. So why should we be striking down a cost saver when if what your argument is, was, that Congress was concerned about costs rising? Why should we assume they wouldn't have passed that information?
MR. CLEMENT: I think a couple of things. One, you get — I mean, I would think you are going to have to take the bitter with the sweet. And if Congress — if we are going to look at Congress's goal of providing patient protection but also affordable care, we can't — I don't think it works to just take the things that save money and cut out the things that are going to make premiums more expensive. But at a minimum -*
JUSTICE SOTOMAYOR: I want a bottom line is why don't we let Congress fix it?