CQ TODAY ONLINE NEWS
March 26, 2012 – 10:55 p.m.
Mandate Is Main Event in Health Care Hearings
By Melissa Attias, CQ Staff
The Supreme Court will tackle the most prominent of four health care overhaul questions Tuesday when the justices hear arguments on whether the law’s insurance coverage requirement is constitutional.
Known as the individual mandate, the provision requires most individuals to maintain health coverage beginning in 2014 or be subject to a penalty payable in their federal income tax returns. If the justices rule that Congress went against the Constitution in creating that mandate, some or even all of the law (PL 111-148, PL 111-152) could be thrown out.
So those following the case will be paying less attention to the lawyers’ arguments and more to any hint the justices give to which way they will come down in their decision, expected by the end of June.
“If you read them very closely and try to hear the nuances — there are nuances even when they’re black-and-white issues — but you could hear from the justices where they are,” Lyle Denniston, a veteran legal reporter who writes for SCOTUSblog, said at a briefing for reporters. “All of them understand that the purpose of oral argument is not to let counsel make an argument to them; it’s to persuade each other and to set the agenda for the conference discussion that’s going to follow.”
When it comes to the individual mandate, the justices will be facing two distinct narratives. The first, offered by the Obama administration, will portray the “minimum coverage provision” as a valid exercise of Congress’ power under the Commerce Clause and the Necessary and Proper Clause of the Constitution.
In its brief, the government argues that the provision regulates how health care consumption is paid for, creating “an incentive for individuals to finance their participation in the health care market by means of insurance.” Individuals without insurance still need health care services at some point, and most of the costs are transferred to others, the administration says. The government also contends that the requirement is “necessary to achieve Congress’s concededly valid objective” of overhauling the health insurance market.
But the National Federation of Independent Business, 26 states and four individuals challenging the health care law (PL 111-148, PL 111-152) disagree. In the states’ brief, the challengers call the mandate “an unprecedented law that rests on an extraordinary and unbounded assertion of federal power.” They say Congress has authority under the Constitution to regulate commerce, but not to force individuals to engage in commerce by buying health insurance.
The administration also argues that the coverage requirement can be upheld separately under Congress’ power to tax. But during oral arguments on another issue Monday, the Justice Department contended that the penalty for not maintaining health insurance was not a tax — a discrepancy that Justice
The law’s challengers will argue Tuesday that the enforcement mechanism is a penalty.
Eyes on Kennedy, Scalia
Observers on both sides of the aisle said they will be paying close attention to questions from Justice
Those siding with the government said they will be keeping an eye on Justice
Jane Perkins, legal director for the National Health Law Program, said she will also be watching Alito and Chief Justice
Mandate Is Main Event in Health Care Hearings
“Those cases would certainly have to be distinguished for the court to find that this individual responsibility requirement is unconstitutional,” Perkins said.
Denniston also suggested paying close attention to Roberts, whose legacy as chief justice is almost guaranteed to be shaped by the health care law decision.
“I don’t think John Roberts wants to be the fifth one if there are only five votes to strike down the mandate,” he said.
Severability on Wednesday Docket
If the court rules that the individual mandate is unconstitutional, it could invalidate some or all of the law’s remaining provisions.
The justices will turn to the issue of severability — whether the rest of the law can go into effect if the mandate is struck down — for 90 minutes Wednesday morning.
Central to that decision is whether the remainder of the law could still function as Congress intended. The plaintiffs say that is not the case, arguing that the entire law should fall with the mandate.
“The administration has pointed out repeatedly that the mandate is key to other provisions of the law,” said Judicial Watch President Tom Fitton, noting that lawmakers did not include a clause in the law that makes the mandate’s severability clear. The conservative legal watchdog group filed a brief supporting the challenge to the mandate’s constitutionality.
The administration maintains that the entire law should not hinge upon the mandate issue, but it is in favor of tying two provisions to its fate.
The administration contends that the court should find that the provisions — a requirement that prevents health insurers from turning down applicants with pre-existing conditions and another that blocks insurers from varying premiums based on health status or other factors — are not severable from the individual mandate.
Without the mandate, those provisions would produce “an adverse selection cascade,” according to the government, because healthy individuals would forgo insurance until they need care. But individuals with serious health concerns would have an incentive to obtain insurance, with the overall effect of increasing premiums and reducing access to affordable coverage. This would be “exactly the opposite of what Congress intended,” the government says.
Because neither side wants to maintain all of the law’s remaining provisions in the event that the mandate is nullified, the court has appointed attorney H. Bartow Farr III to argue that position.
Perkins noted that severability is a “doctrine of judicial restraint” that encourages the court to retain as much of a statute as possible.
Mandate Is Main Event in Health Care Hearings
“I’ll be listening for any judges that seem to not be following that ingrained doctrine of what severability means,” she said.