By Jane Norman, CQ HealthBeat Associate Editor
January 13, 2012 -- Democratic attorneys general recently filed an initial brief with the Supreme Court supporting the constitutionality of the health care overhaul and likely will file at least two more on separate issues, including the overhaul's Medicaid expansion.
The move comes the day after nearly 500 state legislators also filed a brief supporting its constitutionality, indicating that the overhaul's supporters are marshaling forces to counter the attention focused on the 26 states that are challenging the law (PL 111-148, PL 111-152).
Those states, with Florida in the lead, will argue before the court in March along with the National Federation of Independent Business and two individuals.
In their brief, the Democratic officials took a shot at the Republican governors and attorneys general who have pushed the battle all the way to a historic session at the high court.
"Rather than embrace the essential genius of the constitutional design and its allocation of regulatory authority between the states and the national government, the respondents seek to justify their attack on the minimum-coverage provision with a novel misconception of the commerce power, one that does not derive from any principled understanding of federalism," the Democrats wrote.
Friday was the deadline for groups that back the law to file briefs in connection with its requirement that all Americans have health insurance. The result was a flurry of documents from interested groups.
Many more briefs from both outside groups and the parties involved are still to come in advance of the three days of arguments, under a schedule for briefs the court has laid out.
Arguments are separated into the four issues the court will tackle: the individual mandate, the Anti Injunction Act of 1867, the Medicaid expansion and the potential separation of the mandate from the rest of the law.
In a conference call with reporters, Maryland Attorney General Douglas Gansler said attorneys general from four states including Maryland took the lead in drafting their brief. When it was filed on Friday afternoon, 11 had signed on.
Gansler said the states backing the brief would normally strongly resist federal encroachment on their rights. "But the health care problems that the act attempts to address have been an albatross on our citizens for decades and require a federal solution. But a federal solution whereby each state maintains the right to implement its unique health care system is consistent with the federal legislation," he said.
He said that "of course" Congress has the authority to make Americans buy health insurance, just like it drafts soldiers at a time of war or compels citizens to pay taxes. "The idea that this is somehow different because here we have to purchase something is a distinction without difference," Gansler said.
Other states expected to sign the brief are California, Connecticut, Delaware, Hawaii, Illinois, Iowa, New Mexico, New York, Oregon, and Vermont. The District of Columbia and the Virgin Islands also are taking part.
California Attorney General Kamala Harris said the historical understanding of the Commerce Clause is that it allows Congress to act when states can't act alone. The individual mandate is justified because it's essential to the proper functioning of the law, she said. And the law embodies "cooperative federalism," in which states carry out the federal law according to their preferences, she said.
Iowa Attorney General Tom Miller said that "if anything is interstate commerce, it's health care," and limits on the Commerce Clause should be explored in cases that don't affect so much of the economy.
The 26 states battling the law have strongly objected to its expansion of Medicaid, a provision that will be argued separately. Aides to Gansler said their brief touches on Medicaid but will explore that issue at length in a separate brief to be filed later.
In other briefs:
- Patient advocacy groups including the American Cancer Society and Cancer Action Network, the American Diabetes Association and American Heart Association argued that the provision requiring all Americans to have health insurance is necessary to implement the entire law. Congress saw it was needed to accompany patient protections or people would wait until they were sick to buy insurance, they said.
"Congress recognized that the ban on pre-existing condition exclusions and the prohibition of discrimination based on health status must be coupled with the minimum-coverage provision to be effective in achieving the patient protections, cost reductions, elimination of inequitable cost-shifting, and improvements to health insurance Congress intended," they said.
- Groups including the National Women's Law Center, NARAL Pro-Choice America, the National Council of Jewish Women, American Association of University Women, Planned Parenthood Federation, and more said in their brief that a major purpose of the law is to improve women's access to health care and health insurance, and end practices that discriminate against women.
"The nationwide consequences of the insurance market's failure to meet women's needs are significant," the brief notes in its summary of what is often called the Affordable Care Act (ACA). "In 2009, immediately prior to the ACA's passage, nearly one in five women ages 18 to 64 was uninsured."
- Scholars who study the history of U.S. health policy, including Judy Feder of the Georgetown University Public Policy Institute, Jacob Hacker of Yale University, and Tim Jost of Washington and Lee University, filed their own brief.
"The ACA does not create a new health care system, and it clearly does not constitute a federal government "takeover" of American health care," they said. "Rather, it continues a policy toward health care that began in the middle of the last century through which Congress has continuously fostered the development of the nation's private health care delivery and financing system, filling gaps with public programs only as necessary."
- The American Nurses Association, American Academy of Pediatrics, Doctors for America, and others said in a brief written by Ian Millhiser of the Center for American Progress that the health insurance market does not function like any other market. "The national market for vegetables is not in danger of collapsing if Congress does not require people to buy broccoli," they said. "Nor is there a risk that Americans will cease to be able to obtain automobiles absent a law requiring the purchase of GM cars. The nation's individual health insurance market, by contrast, is susceptible to complete collapse if people can wait until they are ill or injured to buy insurance."
- The Small Business Majority and Main Street Alliance, groups that often ally with Democrats, said in a brief that the health care law addresses financial burdens associated with health insurance that affect many small businesses.
"Small businesses pay on average 10 to 18 percent more than large employers to provide the same level of health benefits," they said. "These higher health care costs translate into substantial competitive disadvantages for small businesses. [The Patient Protection and Affordable Care Act] pursues broad-based reform, but the law's end result will help remedy those additional problems specifically hurting small business."
- The California Endowment, a private foundation that advocates for the expansion of health care to the uninsured, said in its brief that care for the uninsured totaled $43 billion in 2008. "The costs of such care are transferred throughout the interstate economy through private insurers, who raise insured individuals' premiums, creating an ongoing 'free-rider' problem," the brief said.
