Short Takes On News & Events

Health Law Challenge Gets A Dry Run At Georgetown Law

By Christian Torres

February 3rd, 2012, 8:56 AM

If a healthy, wealthy young man lives in a hut out in the American wilderness, should he have to buy health insurance?

That was one of many questions brought up Wednesday, when the Georgetown University law school held a mock version of the upcoming oral arguments for the Supreme Court’s consideration of the 2010 health law. A group of experienced lawyers argued the constitutionality of the law’s individual mandate in an afternoon of legal theater. The “moot court” aired debate points and gave a stuffy auditorium full of law students – many on the edge of their seat – a peek at the legal fireworks set for this March.

As part of the format, the six “justices” who heard the case didn’t make a decision, but the event did show a plausible scenario for how the opening statements might unfold: Grandiose statements about the need for citizens to pay into the health care system versus themes of individual liberty and economic freedom.

But when the justices began their questioning, the face-off turned into a series of hypotheticals designed to test how far Congress should be able to go in terms of requiring Americans to buy a product – in this case, health insurance. At times the hypotheticals – everything from requiring people to buy chocolate ice cream to requiring individuals to purchase a second car — became so frustrating that the lawyers turned red and took a step back to remind themselves they weren’t embroiled in a real-life courtroom drama.

Walter Dellinger, former acting solicitor general under President Bill Clinton, represented the Obama administration’s pro-mandate position. Dellinger has testified before the Senate Judiciary Committee in favor of the law’s constitutionality. He boiled his argument down to the inevitability that all individuals will at some point need health care, and he said the individual mandate is authorized under Congress’ constitutional power to regulate interstate commerce. Dellinger also pointed to the Constitution’s “necessary and proper” clause, arguing that the mandate is necessary to enable the health law’s ban on insurers’ denial of coverage because of a pre-existing condition.

Representing the law’s opponents, Steven Bradbury, a partner with Dechert LLP who filed an amicus brief against the severability of the mandate from the health law, said the mandate co-opts Americans’ economic freedom and “uses it as a tool to counter a market problem created by the act itself” with the pre-existing coverage provision. Bradbury added that “the mandate goes well beyond the bounds” of the necessary and proper clause, with an infringement of rights that forces individuals to enter and remain in the health care market.

While the justices didn’t make a decision, there was a question and answer period, and one law student asked the legal experts who were acting as “justices” what they thought about the case’s moving parts.

David Cole, a Georgetown professor, said that the “necessary and proper” argument was “extraordinarily strong,” while the opposition’s arguments “don’t seem to make much sense.” But Seth Waxman, a solicitor general under Clinton, said the administration will be challenged by the mandate’s “complete absence of a pedigree.”

One justice spoke for the rest of the panel and said, “We don’t really think anything,” generating one of a few moments of laughter during an otherwise tense afternoon.

7 Responses to “Health Law Challenge Gets A Dry Run At Georgetown Law”

  1. Julie F. says:

    If the mandate proves successful, shouldn’t there be a concurrent “refusal-to-treat” option for the providers – if an uninsured person receives treatment doesn’t that invalidate the whole system?

  2. Rich says:

    If the argument is against mandates of any form, hospitals should also benefit from any ruling. If someone needing emergency care can not be mandated to buy health insurance, then hospitals deserve the right to refuse care to anyone without insurance. As heartless as that may sound, Republicans don’t seem to fully understand the ramifications of their neanderthal decisions until a family member or a close friend needs emergency care and is refused such care because they didn’t buy insurance. Apparently, Republicans need to actually see it happen before they admit they are wrong. I say, let it happen so they can see. I say, that if SCOTUS rules against the individual mandate, they should rule in favor of “refusal-to-treat”. I say, let the games begin! By the way, once SCOTUS rules against the individual mandate, it will take another SCOTUS ruling to reverse it. My guess, we will never see it reversed. Never! In spite of the fact that the individual mandate was originally a Republican idea, should they ever want to reinstitute the individual mandate, it will be impossible because of what might happen in June of 2012. Good or bad, the fate of the individual mandate will be sealed in 2012.

  3. Joseph says:

    Julie, if someone doesn’t buy health insurance under PPACA they will be charged a penalty whenever they file their taxes. I think the penalty is something like $600/yr, but cannot be any more than the Bronze plan on the insurance exchange (the cheapest plan of the exchange). This would allow for those uninsured emergency room patients to be treated without undermining the system. Now, as for those people who don’t file or pay taxes, that’s another problem altogether :)

  4. Joseph says:

    Sorry, make that $750 after 2016.

  5. Rich says:

    The individual mandate requirement is income indexed. The lower your income, the less you pay. Some people won’t even have to pay a dime if they are at poverty levels. The key for poor people is that in order to prove they qualify for the subsidy, they must file an income tax return even if they don’t have to pay taxes. Repuglicans are so worried about a lousy $750 fine. I’ll bet Mitt Romney’s doc charges him $750 just for a single office visit.

  6. Rich says:

    Regardless of party affiliation, the individual mandate is a good idea. It requires that every American have some “skin in the game” with regard to being accountable for paying for their health care. You can go your entire life not needing health care but one thing for sure, you’ll need a health professional to sign you death certificate if your family wants it official. My concern is that, once this issue goes before a heavy handed Supreme Court filled with Neanderthals that can barely think, we may find that we can never use this valuable tool again. The fact that Mitt Romney and Newt Gingrich both supported the individual mandate in a prior life says volumes to me. It’s a darn good idea! I hope these right-wingers on the Supreme Court take their time in making this important decision, because once they rule, it’s a done deal! Anybody remember Roe v Wade?

  7. Jim in FL says:

    The tax penalty is like a tax break turned around.
    Can the government give a tax break? Of course.
    Does the fact that the government gives a tax break for mortgage interest mean that the government is forcing people to buy a house? Of course not.
    There is no mandate to buy health coverage.

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