Short Takes On News & Events

Coakley v. Cuccinelli: Attorneys General Debate The Health Law

By Christian Torres

February 9th, 2012, 1:38 PM

State attorneys general Martha Coakley and Ken Cuccinelli won’t be arguing the constitutionality of the 2010 health law before the Supreme Court in late March, but they brought their opposing cases before the National Press Club in Washington on Thursday.

As part of the club’s Newsmaker program, Massachusetts’ Coakley and Virginia’s Cuccinelli argued over various aspects of the law but mostly its individual mandate. Cuccinelli was the first of 27 state attorneys general to bring a case against the 2010 law; Virginia, however, is not included in the suit the Supreme Court is scheduled to consider. Coakley became Massachusetts’ attorney general shortly after that state enacted its own health law, which also included an individual mandate.

“Governor Romney, at the time, certainly not only thought that that individual mandate was constitutional — he believed it was good public policy,” Coakley said, drawing in Mitt Romney’s presidential campaign. “Many of us in Massachusetts still think that it is [good policy.]”

Coakley said 70 years of Supreme Court precedent has affirmed Congress’ constitutional ability to regulate interstate commerce, like the health care market. All individuals will at some point participate in that market, she added, asserting that the mandate is “necessary and proper” for the health law’s enactment.

Cuccinelli argued that the court faces a case about individual liberty, not about health care. He said that Congress does indeed have the power to regulate commerce, but it does not have power to command or compel individuals to enter the health care market.

8 Responses to “Coakley v. Cuccinelli: Attorneys General Debate The Health Law”

  1. april says:

    If the Supreme Court decides against the individual mandate, I hope they include striking down the mandate that requires hospitals to provide emergency care to the uninsured. Republicans can’t have it both ways. Constitutional liberty and freedom apply to hospitals the same way Constitutional liberty and freedom apply to individuals. No business, for-profit or non-profit, should be mandated to provide a service for which they may not be fairly compensated. Uninsured individuals pose such a risk. What is more important about the Supreme Court ruling against the individual mandate is that the individual mandate was originally a Republican idea. Newt Gingrich was a very strong proponent of the individual mandate and wrote extensively about its merits. Mitt Romney got the individual mandate passed and enacted as Governor of Massachusetts. Once the Supreme Court rules, the fate of the individual mandate will be sealed. It will take another Supreme Court ruling to change that fate. I encourage those who, at some point in time, agreed with Newt and Mitt to think very carefully. If we see the individual mandate defeated, it will remain defeated for a very long time and may not ever get a fair hearing again. If politics is moved aside, you will find bipartisan support for the individual mandate. The real argument is not about the individual mandate. The real argument is about trying to find excuses to defeat Barack Obama in November of 2012. The individual mandate is another Republican excuse.

  2. Paul says:

    April, you hit the nail squarely on the head! The issue that the Supreme Court (SCOTUS) will hear and eventually decide in June of 2012 is a perfect example of Republicans being more than willing to throw the baby out with the bathwater just to win the White House. It does not matter to the GOP that they have supported the individual mandate since the mid 1990s, it does not matter to the GOP that the individual mandate represents the traditional ideals of individuals paying their own way and not relying on public welfare, it does not matter that the two leading contenders once held very strong positive opinions about the need for an individual mandate, what really matters here is that the GOP sees the economy slowly picking up, real jobs are gradually returning and they have completely run out of excuses to blame President Obama for all of our troubles. The GOP sees the polls. The GOP sees that Obama is winning back his base and his popularity has grown to a 51 percent approval rating. The GOP is scared! They have one more shot before the November 2012 election. That shot is to try to destroy Obamacare in any way they can. Good provisions or bad provisions, the GOP could not care less about who is helped by Obamacare, they need to win back the White House. They are throwing out a good provision when they throw out the individual mandate. They know it! It’s politics!

  3. Charles says:

    Although I am not a fan of Cuccinelli, I believe the report, above, succinctly covers his point, and it’s a good one–Congress has the power to regulate commerce, but it doesn’t have the power to compel individuals to enter the health care market.

    if the law stands, as written, what is to prevent Congress from requiring individuals who live in floodplains to purchase flood insurance? Or, keeping with health care, what would prevent Congress from compelling smokers, or the obese, or participants in any number of high risk activities to purchase insurance to mitigate the potential negative financial impact on all other members of the insurance pool?

    No. It is not acceptable, no matter how well intentioned, and it is rightly challenged. The current health insurance model is strained. It is also neither ideal nor able to cover every one in all instances, but that should not be construed as motivation for, or acceptance of, Congress taking on new powers for itself at the expense of individual liberty.

  4. Thomas Lynch says:

    On the other hand, if congress cannot compel you to purchase health insurance, and you have decided to exercise your freedom of choice to go without it, and you happen to need medical attention (which everyone does at one time or another), and you cannot pay for your medical care, I and the rest of society will be required to cover your costs.

    We’d be required to pay, but you would not? Doesn’t seem either logical or fair. Or, am I missing something?

  5. Bill says:

    If one chooses not to purchase health care insurance, needs health care, but cannot pay for it, if health care is provided to the individual who (or what) should pay the provider of the care? If one can’t be compelled to purchase at least some personal health care insurance coverage, can the same someone not be compelled to contribute, through taxation or otherwise, to payment to providers for care given to the uninsured? A motorcycle rider without health insurance coverage objects to a state’s “helmet law” and rides without a helmet. If the rider gets a head injury as a consequence are others obliged to pay providers for the care given to the motorcyclist? If members of a group agree to financially support a perceived social good – access to health care, in this case – but some choose not to, should the non-participants be allowed access to care?

  6. ted says:

    First as for the ACA, the severability provision was in and then by agreement it was eliminated. It seems to me that it is very difficult now to agrue that the law’s provisions were severalble when this striking by Congress reflects Congress’ intent that the provisions are in fact not sevarable – otherwsie they would not have eliminated it. Accordingly, if the mandate is found to be an overreach; then the law might appropriatedly be invalidated. Some folks may not like it; but that’s what they wrote and that’s the evolution of the statute. We are stuck with what was done and to do otherwise gets the courts into the mind reading business and in effect writing statutes which is another topic.
    From a policy perspective, coverage induces use. There is not much real” insurance” in heathcare. It is prepaid first dollar coverage which is why healthcare consumption is so high. True insurance, insures the top side risk and not the first dollar risk – kind of like auto insurance. Having heathcare coverage be mandated with first dollar coverage, creates the wrong incentives and inherently results in over spending – always has and always will, unless one changes the incentives.

  7. Margaret Beck says:

    I concur with April. Regardless of the fact that the Republican agenda to cause the failure of Obama at any cost is an embarrassment to the Country, the fact is that you can’t have it both ways. If you can’t mandate coverage, you simply cannot mandate that a vendor provide a service without regard to reimbursement for that service.

    The country is not able to have the higher ethical debate about our health care delivery system and whether we believe that it is a national obligation to provide at least minimal care to our citizens, because it simply will not fit in a 30 seocnd sound bite. Further the debate about health care financing would then be at least a bit easier to address if we could determine our true national policy about health care.

  8. David Short says:

    They can debate all they want, but the legislation will not be overturned by Congress, the Supreme Court or anyone else because it was fundamentally a step in the right direction, and most everyone in legislative positions knows it. Repealing it would be catastrophic, and they all know that, even the Republicans who attack it. Politically, however, it is advantageous to Romney et al to try to force the president into defending his plan, and take whatever fallout he gets from that. If I were debating the Republicans I would ask them to defend their alternatives. Vouchers- are you serious? That would require drastic regulation of the insurance industry, which is, ostensibly exactly what the Republicans are dead set against. Defeating Obama at any cost- is there anything less patriotic that that agenda?