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Experts split on mandate’s viability

Profile image for By Lowell Brown / Staff Writer
By Lowell Brown / Staff Writer

As the U.S. Supreme Court prepares to hear oral arguments this week on challenges to the federal health care reform law, some constitutional experts differ on whether the individual mandate should survive the review.

Legal scholars interviewed by the Denton Record-Chronicle came to opposite conclusions, reflecting how polarizing the issue continues to be. More than half of likely U.S. voters support repealing the law, compared with 39 percent who oppose repeal, according to a Rasmussen Reports poll released last week.

Other polls have found the public similarly divided over the 2010 law, which is considered President Barack Obama’s signature domestic achievement and strongly opposed by the Republicans seeking his job in November.

The legal challenge was brought by 26 states including Texas, the National Federation of Independent Business and individuals who argue the law’s mandate to purchase insurance is unconstitutional. The Supreme Court agreed to hear the case after lower courts issued conflicting opinions.

Congress has a well-established power to regulate commerce, but critics say that power does not include forcing people to buy something.

“It’s a hard case,” said Lackland Bloom Jr., a professor and constitutional law specialist at Southern Methodist University Dedman School of Law. “I think that both sides have some pretty darn good legal arguments … but personally I think Congress was overreaching here.”

Hogwash, said Sanford Levinson, a professor at the University of Texas School of Law.

The attack on the mandate is a “frivolous argument,” said Levinson, who specializes in government and constitutional law.

“It is fully within the meaning of the Necessary and Proper Clause,” he said. “To strike it down, the court would have to revisit some basic building-block decisions of the constitutional system.”

Analysts agree the case is historic and could have major implications for the nation’s health care system. Some also describe the case as a test of how far the government can go in regulating individual decisions.

Three days of oral arguments on the mandate and other aspects of the law are planned over six hours starting Monday. A decision is expected before the court’s term ends in June.


The law

A Democratic-controlled Congress passed the Patient Protection and Affordable Care Act with a goal of expanding insurance coverage to nearly all Americans. At its core are mandates that most Americans buy insurance — and most businesses offer it — or face penalties.

The government estimates the law will insure roughly 32 million people who previously lacked insurance, mostly by expanding Medicaid, creating new state-run “exchanges” where private insurers compete for customers, and offering government tax credits and subsidies to offset costs.

Some parts of the law have taken effect. Others, including the mandate to carry health insurance, will start in 2014, pending the Supreme Court review.

On Monday, the court is scheduled to hear arguments on whether the federal Tax Anti-Injunction Act bars challenges to the law. That debate hinges on whether the penalty for violating the individual mandate is considered a tax. If so, challenges would have to wait until the penalty is levied in 2015, legal experts say.

Neither the Obama administration nor the plaintiffs are arguing the anti-injunction act applies in the case, but the court granted the review in light of conflicting lower court opinions.

Justices will hear arguments on the individual mandate Tuesday. On Wednesday, arguments are scheduled on whether the entire health care law should fall if the mandate is stuck down.

Also Wednesday, the court will hear arguments on whether states can be forced to expand Medicaid in the way the law requires.

The court declined to allow cameras but plans to release same-day transcripts and audio recordings of the proceedings on its website.


The arguments

The Constitution gives Congress power to regulate commerce among states, and court rulings have affirmed the government’s power to regulate conduct that has a “substantial effect” on interstate commerce.

Supporters of the health care law say the individual mandate falls within that power.

In legal briefs, the government argues that people without insurance still receive health care services but pay only a fraction of the cost.

On average, the uninsured pay 37 percent of their health care costs out of pocket, while third parties such as government programs and charities pay 26 percent on their behalf, according to figures cited by the government. Health care providers bear the remaining costs, which are passed on to the insured through increased premiums, the government says.

Since the New Deal, the Supreme Court has generally given Congress broad power to regulate interstate commerce, said Bloom, the SMU law professor.

An exception came in 1995, when the court struck down a law that made it a federal crime to bring a gun into a school zone. Congress justified the law under the Commerce Clause, saying costs associated with gun violence eventually affected the national insurance market, but the court disagreed, Bloom said.

The court used similar reasoning in 2000 in striking down a provision of the Violence Against Women Act that made sexual assault a federal civil offense, he said.

“The court has made it clear that a Commerce Clause theory, to be valid, must have a logical stopping point,” Bloom said. “The court rejected [the school-zone gun law] because there is no logical stopping point if you pile inference upon inference.”

Defenders of the health care law point to a more recent ruling, Gonzales vs. Raich in 2005. In that case, a 6-3 majority upheld the federal government’s right under the Commerce Clause to criminalize the use and production of marijuana, despite California’s attempt to legalize it for personal, medicinal use.

The ruling was partly based on the idea that if the government has a pervasive regulatory program, such as the Controlled Substances Act, it can regulate beyond the scope of the Commerce Clause to protect that program, Bloom said.

“The argument based on the Raich case now is that we have this very complicated regulatory scheme over health care and that the individual mandate is an important component of that [and therefore should be upheld],” Bloom said.

Supporters say the mandate is crucial to ensuring that younger, healthier people enter the insurance market and hold down rates when, starting in 2014, insurers can no longer deny coverage to people with pre-existing conditions.

But not everyone agrees the Raich case is relevant to the health care debate.

“This [individual mandate] is the first time that, in an effort to regulate commerce under the Commerce Clause, Congress has compelled Americans to participate in the commercial markets, even against their will,” said Texas Attorney General Greg Abbott, a Republican who opposes the mandate on constitutional grounds. “Neither Raich nor any other case is on point dealing with this. This is truly a unique case.”

A ruling in favor of the mandate would remove all practical limits on the power of Congress to force people to buy products, Abbott said.

Obama opposed a health insurance mandate as a candidate for the Democratic presidential nomination, telling CNN in February 2008 that “if a mandate was the solution, we could try that to solve homelessness by mandating everybody buy a house.”

To Bloom, the “no stopping point” argument is the strongest legal case against the law and one he finds persuasive.

“If the court invalidates it, it will be because of the argument that if this is OK, there’s nothing Congress cannot do,” Bloom said. “I think the majority of the court believes that’s not what the Constitution provides. It’s a Constitution of enumerated powers.”

Levinson, the UT law professor, rejects the “no stopping point” argument.

“You have to allow a certain kind of common sense to intervene,” he said. “Under what circumstances would you force everybody to buy a house? It’s very difficult to imagine them.”


An easy case?

Levinson said he believes there is little disagreement among legal experts on the issue. Congress reasonably concluded a mandate was needed to control costs in an industry that accounts for one-seventh of the U.S. economy, he said.

“If you asked 100 constitutional law professors about the mandate, 90 would say it’s basically an easy case,” Levinson said. “I think the reason it’s thought not to be is because the media tried to bend over backwards to play fair.”

Many legal scholars, including Bloom, say even if the mandate is struck down, the court is unlikely to invalidate the entire health care law.


LOWELL BROWN can be reached at 940-566-6882. His e-mail address is