• New series on the ACA SCOTUS briefs

    I’ve been on a break from TIE, celebrating my 25th wedding anniversary.

    But now I’m back, and the Supreme Court briefs on the ACA are rolling in.  The Court accepted argument on 3 issues:

    • Whether the minimum coverage provision (MCP) (aka the individual mandate) is a valid exercise of Congress’ powers under Article I of the Constitution (ie, under either the Tax or Commerce Clause);
    • Whether the Medicaid expansion was coercive to states (the Spending Power coercion issue);
    • If some provisions of ACA are found to be unconstitutional, how much of the law should be struck down (the “severability” issue).

    Today, I’ll just look at the U.S. merits brief for the petitioners, filed last Friday.

    The brief is a clear, fact-based description of the need for health care reform.  It’s the sort of explanation that has been absent from political discussion for a while.  The brief is filled with quotes from Justices Scalia and Kennedy, potential swing votes on the MCP. It also deploys some traditionally conservative themes, such as judicial restraint and law & economics. The brief also embraces the argument that the MCP is a tax, but that will require another post. Some highlights:

    1. The individual mandate was a Republican idea:

    … based on recommendations by the Heritage Foundation and a group of health care economists and lawyers associated with the American Enterprise Institute, both of which supported the mandatory purchase of private insurance so that the sale of insurance and delivery of health care would take advantage of private-sector market efficiencies.

    2. The brief is another example of law & econ at SCOTUS, a discussion that assumes some basic micro:

    In sum, the uninsured as a class presently externalize the risks and costs of much of their health care; the minimum coverage provision will require that they internalize them (or pay a tax penalty).  This is classic economic regulation of economic conduct.

    And:

    They also shift present risk to other market participants, which in monetized in the form of higher insurance premiums now, not later, for those with insurance.  The point of obtaining insurance is to internalize risk, which occurs when the insurance is obtained and the premium paid.  Conversely, the failure to obtain insurance externalizes risk, and that externalization occurs at the time the insurance is not obtained.

    3. Warning SCOTUS against substituting their own policy preferences:

    Congress enacted the Affordable Care Act, and chose to include the minimum coverage provision, after years of careful consideration and after a vigorous national debate.  That was a policy choice the Constitution entrusts the democratically accountable branches to make, and the Court should respect it.

    And:

    Instead of deferring to Congress’s judgments, the Court of Appeals made its own de novo assessment and concluded that, in its view, the minimum coverage provision will not adequately accomplish Congress’s objectives because of its exemptions and enforcement mechanisms.  Pet. App. 151A-152A.  That analysis was “startlingly like strict scrutiny review” and has no place in review of an Act of Congress under the Commerce Power. Id. At 218A (Marcus, J).  It is for Congress, not the courts, to decide how to balance its legislative goals with other concerns.

    Finally, congrats to health law professors Mark Hall & Wendy Mariner for their citations in this brief. They plan to file an amicus brief on Friday.

    KO

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    • The president and Congress were crystal clear that this was NOT a tax. They even went so far as to defeat an effort to call it a tax in the legislation. You can’t ignore that or try to change it after the fact, now that it’s clearly become a glaring weakness

      • I’m not trying to change anything, just reporting what’s in the USG merits brief – but I’d encourage you to read that section of the brief and the citations to the Congressional Record.

        Kevin

    • “…after years of careful consideration…”

      The inclusion of this phrase in the brief is offensive, and your favorable citation of it is laughable.