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Obama Administration Defends Individual Mandate in Supreme Court Brief

By Dena Bunis, CQ HealthBeat Managing Editor

January 6, 2012 -- Lawyers on both sides of the question of the health care overhaul law’s constitutionality filed briefs to the Supreme Court Friday, in advance of the March oral arguments in the landmark case.

Obama administration lawyers held a mid-afternoon conference call to reiterate the reasons they maintain that the individual mandate is constitutional, both under the Commerce Clause and under the taxing power the Constitution gives to Congress.

Also filed Friday were the briefs on the issue of whether if the court strikes down the individual mandate the whole law falls. Those arguments are being made by those who oppose the overhaul. In addition to the main plaintiffs in the case—26 states, the National Federation of Independent Business and two individuals—a number of other health care law opponents filed amicus briefs saying that if the high court invalidates the individual mandate, the rest of the measure cannot function properly. The American Center for Law & Justice (ACLJ) filed on behalf of itself and 117 members of Congress, 36 Senate Republicans filed a brief and America’s Health Insurance Plans and the Blue Cross and Blue Shield Association filed a separate brief.

The high court is scheduled to hear oral arguments on the challenge to the law on March 26, 27 and 28. Between now and the arguments, a number of briefs will be filed on all four issues the justice will hear arguments on the individual mandate, the Medicaid expansion, severability of the law and whether a tax act prohibits consideration of the constitutionality of the law until someone has actually been required to pay a penalty for not having insurance.

The U.S. Court of Appeals for the 11th Circuit in Atlanta earlier this year declared the law’s individual mandate unconstitutional but left the remainder of the measure intact. Two other federal appeals courts have upheld the law’s constitutionality, while the U.S. Court of Appeals for the 4th Circuit ruled it would be premature to decide the case in light of the Anti-Injunction Act.

Congress enacted the health care law (PL 111-148, PL 111-152) “to address a crisis in the national health care market,’’ the administration’s 130-page brief defending the individual mandate says in part. Justice Department officials said on the conference call that the federal government has regulated the health sector of the economy for decades, including providing tax incentives that have shaped employer-sponsored insurance and passing ERISSA and HIPAA rules that govern the way people pay for their medical expenses. Medicare pays for care for the elderly and Medicaid picks up costs for the poor. The one group that has been left out, administration lawyers say, is access to affordable insurance the individual market.

The brief says that the overhaul law “closes a gap that has undermined Congress’s longstanding system of regulation and financial incentives in the health care market and that has impeded the ability of millions of Americans to obtain services in that market. The minimum coverage provision is key to the insurance reforms that were designed to fill that gap. The provision is therefore within Congress’s commerce power.”

The Obama administration’s brief also says that Congress was well within its constitutional taxing power to require a minimum coverage provision—the mandate—and that the only consequence of someone not abiding by the mandate is a tax consequence. “Non-exempted federal income taxpayers will have increased tax liability for those months in which they failed to maintain minimum coverage for themselves or their dependents,’’ the brief says.

The Obama administration also addresses the fact that lawmakers supporting the overhaul repeatedly have used the word “penalty” rather than the often toxic “tax” to describe the money those who do not carry insurance by 2014 will have to pay to the federal government.

“That Congress used the ‘penalty’ in the minimum coverage provision . . . rather than ‘tax,’ is immaterial to whether it was a proper exercise of Congress’s power over taxation,’’ the brief says.

In the brief opposing severability, the ACLJ and lawmakers say that “the unconstitutional individual mandate is the essential component” of changes the law makes to the health insurance and health care markets, something the brief says the Obama administration has conceded.

“Without the individual mandate, the ACA’s remaining provisions cannot function properly. Thus the unconstitutional individual mandate is not severable from the ACA and the entire act must be invalidated,’’ the brief says. The federal government has until Jan. 27 to respond on the severability question.

Brief Calls for Recusals
In another move, FreedomWatch founder Larry Klayman filed an amicus brief, demanding that Justice Elena Kagan recuse herself from the health care challenge. Republicans have been calling for Obama’s former solicitor general to step aside from this case just as Democrats have been asking Justice Clarence Thomas to recuse himself because of his wife’s public activities against the law. So far neither justice has indicated any intention to do so.

In his brief Klayman also goes after Chief Justice John Roberts for comments about ethics and the court that he made in his annual report to Congress. In that report, Roberts doesn’t specifically mention the landmark health care suit because he’s not supposed to comment on cases before the court. But he referred to issues that have “drawn public attention,” and wrote that he has “complete confidence in the capability of my colleagues to determine when recusal is warranted.”

Klayman said in his brief that Robert’s comments in the annual report “are an affront [to]the judicial system and the American people, who depend on judges to be neutral, unbiased and independent.”

Klayman also wrote that as solicitor general, Kagan “acted as counsel [to] the drafters in developing a strategy to defend the [health] law. This role should disqualify Justice Kagan,’’ he wrote, “because her ‘impartiality might reasonably be questioned.’ Unlike allegations of partiality concerning Justice Clarence Thomas, Justice Kagan’s involvement is not a matter of another member of her family playing a partisan role concerning the Act. Her past involvement is personal and direct.”

Dena Bunis can be reached at [email protected].  

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