Health law arguments take shape in first Supreme Court briefs

DOJ, plaintiffs build their cases ahead of hearings

Topics: Health Policy, Market Trends, Strategy

January 9, 2012

In its first brief filed with the Supreme Court, the Department of Justice (DOJ) defended the federal health reform law, arguing that Congress acted "well within" its constitutional powers to pass the Affordable Care Act's individual mandate.

DOJ said the Constitution provides Congress with significant powers to regulate economic activity and address a health care market "crisis," adding, "That was a policy choice the Constitution entrusts the democratically accountable branches to make, and the court should respect it."

According to the brief, the mandate is an element in a law that is necessary to break the cycle of cost-shifting—a process that raises health insurance premiums for all citizens. The brief stated, "The uninsured shift tens of billions of dollars of costs for the uncompensated care they receive to other market participants annually," adding, "That cost-shifting drives up insurance premiums, which, in turn, makes insurance unaffordable to even more people."

The filing also addressed the fine that most individuals would incur for failing to obtain health coverage by 2014 and the discussion over whether it should be considered a penalty or a tax. "That Congress used the word 'penalty' in the [mandate], rather than 'tax' is immaterial to whether it was a proper exercise of Congress' power over taxation," the brief stated.

DOJ addresses plaintiff controversy
In addition, DOJ addressed the controversy over one of the plaintiffs in the lawsuit before the Supreme Court. Mary Brown of Panama City, Fla., recently closed her auto repair shop and filed for personal bankruptcy, putting her legal standing to sue in question. Last week, the National Federation of Independent Business—a plaintiff in the lawsuit challenging the reform law, along with 26 states and two individuals—asked the high court for permission to add two more plaintiffs to the case.

DOJ noted that among Brown's liabilities that led to the closing of her business were thousands of dollars in unpaid medical bills. "Those liabilities are uncompensated care that will ultimately be paid for by other market participants," the DOJ brief said. However, Brown on Friday said she filed for bankruptcy because of expenses related to the business and not because of medical bills.

Plaintiffs also file first brief
Meanwhile, Florida Attorney General Pam Bondi (R) and representatives of the 25 other states on Friday filed their first brief with the Supreme Court challenging the mandate, the South Florida Business Journal reports. They argued that the entire law must be invalidated if the court finds the individual mandate unconstitutional.

Republicans, economists file briefs
More than 100 congressional Republicans signed an amicus brief—filed by the American Center for Law and Justice—asking the Supreme Court to strike down the entire law if the court declares the individual mandate unconstitutional.

In addition, more than 100 economists joined a separate brief—which the American Action Forum filed on Friday—that argued that the mandate is not severable from the rest of the law. The brief stated that the cost of the reform law would increase dramatically without the mandate and that lawmakers likely would not have passed the overhaul without the measure (Barnes, Washington Post, 1/6; Haberkorn, Politico, 1/6; Kendall/Maltby, Wall Street Journal, 1/6; South Florida Business Journal, 1/6; Baker, "Healthwatch," The Hill, 1/6).

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