Last week, Georgetown Law held an event titled, “Health Care Mock Moot Court: Department of Health and Human Services v. Florida.” There were some big names participating: Steven Bradbury (head of the Office of Legal Counsel for former President George W. Bush), several behemoths of Supreme Court litigation (David Cole, Maureen Mahoney, Kannon Shanmugam, and Kathleen Sullivan), and two former Solicitor Generals (Walter Dellinger and Seth Waxman). Dellinger and Bradbury served as advocates and the rest as Justices of the Court.
(Background: the Patient Protection and Affordable Care Act (“PPACA”) was signed into law in 2010 by President Obama. Among its numerous provisions the law (1) bars insurance companies from rejecting unhealthy clients or those with ‘preexisting conditions,’ and (2) requires everyone in the United States to buy health insurance or pay a penalty. The mandate was largely included to rebalance the loss of profits insurance companies would absorb after being forced to insure clients that pose greater financial risks.)
The mock-Justices took a cue from the real ones, immediately unleashing a barrage of hypotheticals for Dellinger to resolve. Dellinger countered that health care is nothing like forcing Americans to buy electric cars or ice cream because everyone will eventually become a participant in the healthcare market. Even though this is the first time Congress has passed a law to penalize inactivity (not buying insurance), it is also regulating a unique interstate market that differs markedly from any other consumer product. If an individual chooses not to buy milk, that will not affect any future buyer of milk. But if an individual chooses not to buy insurance and not seek medical attention, they will push those costs on hospitals, states, and other insurance consumers when they are inevitably treated in emergency rooms.
Several “Justices” also expressed their concern that the law lacked a limiting principle. Authorizing Congress’ power to regulate inactivity under the commerce clause would be an unprecedented power. Dellinger dodged this question repeatedly over the half hour, but finally announced in his last five minutes that he would prefer the Court reserve the right to limit Congress’ future actions, and that there could be instances of regulating inactivity that fell outside the commerce clause.
Bradbury started his response by extolling the historic virtues of economic freedom and rebuking Congress’ imposition of forcing Americans to engage in an economic market. He cited Gibbons v. Ogden, reminding the Court that the case granting Congress the right to regulate interstate markets did not include compelling people to engage in market activity. He pressed that it was especially troublesome that Congress invented a new power to fix a problem of its own creation, and that their solution was neither necessary nor proper.
No one appeared compelled by the ‘economic freedom’ aspect of his argument. David Cole interjected briefly that states (namely Massachusetts) had been regulating the healthcare market in a similar way for years. It was also mentioned that economic freedoms have always been treated differently from other freedoms, and the Court has historically removed itself from economic issues, applying the most lenient “rational basis” test.
Justice-for-the-day Maureen Mahoney changed gears, questioning the intrusive nature of the law by comparing it to Congress’ taxing authority and other public programs like Social Security. Seth Waxman observed that the mandate’s penalty functioned like a ‘backwards tax’ – charging violators a modest penalty to provide just enough of an incentive to buy insurance. He noted that there were already exemptions from the penalty in place. Bradbury countered that Social Security required membership through an actual tax, but the healthcare law required membership and then found individuals without insurance in violation of federal law. That opened the door to criminal charges, which have yet to be imposed, but could be if the Court upholds the PPACA.
The next example drew on Wickard v. Filburn, in which the Court found that the government had the ability to bar an individual from growing wheat for personal consumption in order to encourage the development of the wheat market during the Great Depression. Against arguments from Cole and Kannon Shanmugam that this was tantamount to forcing Filburn to engage in the market, Bradbury noted that the Court did not allow the government to legally force him to buy wheat. Filburn still had the option to abstain penalty-free.
At the end of the event it appeared that no one thought the Supreme Court would easily strike down the individual mandate. During the question and answer session, Dellinger commented that the biggest challenge for the Obama administration will be battling back the public commentary, not what they will face on March 27th. The conservatives on stage were slow to make judgments and let the crickets answer when a student asked their view on how the Court might rule.