EDITOR’S NOTE: The U.S. Supreme Court has agreed to consider four key issues as it reviews the constitutionality of the Affordable Care Act, the historic health care reform law passed by Congress in 2010. The issues — jurisdiction, individual mandate, severability and Medicaid expansion — will be argued over three days beginning March 26. Supreme Court Insider is featuring each issue in turn, looking at the arguments on both sides, as well as the lawyers who will appear before the Court. In the last Supreme Court Insider, we featured the jurisdictional question. In this issue, we examine arguments for and against the individual mandate.

In the hard-fought battle over the nation’s new health care law, the combatants in the U.S. Supreme Court have a single objective: to defend or to destroy the so-called individual mandate.

Forget the Anti-Injunction Act. Forget severability and the expansion of Medicaid. In the minds of supporters and opponents of the Patient Protection and Affordable Care Act, the issue before the Supreme Court that truly counts is the law’s minimum-coverage requirement — in other words, the individual mandate.

For two hours on March 27, the justices will hear arguments on whether Congress exceeded its lawmaking powers under Article I of the Constitution by requiring qualified individuals to purchase health insurance or pay a penalty if they do not.

Solicitor General Donald Verrilli Jr. will defend the requirement for 60 minutes of the two-hour argument. Paul Clement of Bancroft, representing 26 state attorneys general, and Michael Carvin of Jones Day, counsel to the National Federation of Independent Business and four individuals, will each have 30 minutes to counter the government’s defense.

The constitutionality of the minimum-coverage requirement is the second of four issues surrounding the law that the justices have agreed to decide. On March 26, the first of three extraordinary days of health care arguments, the Court will examine whether the Anti-Injunction Act of 1867 bars judicial review of challenges to the act — at least until 2015, when the penalty for failing to purchase health insurance kicks in on a taxpayer’s income tax form. On March 27 comes arguments on the insurance coverage requirement. And the justices will hear the two remaining issues on March 28: whether the individual mandate can be severed from the rest of the law if found unconstitutional and whether Congress unconstitutionally coerced the states into participation in the law’s expansion of Medicaid.

Seventy-seven amicus briefs have been filed on the mandate issue alone in Department of Health and Human Services v. Florida — 31 supporting the government, one in support of neither party, and 45 supporting the challengers.

“This is not simply about a mandate to make a purchase,” said former acting Solicitor General Walter Dellinger of O’Melveny & Myers, adding that the Obama administration had failed to make the public understand that the mandate and two other provisions in the act are at stake.

There is an “indispensable link” between the mandate and the law’s prohibition on insurance companies’ decisions to reject individuals with pre-existing conditions or to charge higher rates based on those conditions, said Dellinger, a vigorous advocate of the law. The latter two are known as the guaranteed-issue and community-rating provisions.

Without the mandate to spread risk across a large pool of insured, the other two provisions likely will result in skyrocketing premiums and an exodus of insurance carriers and healthier individuals from the market, according to states that have experimented with guaranteed issue and community rating.

“The government and the challengers have agreed at every stage of the litigation” that the three are linked, Dellinger said. But that is where all agreement ends and the battle over the mandate’s constitutionality begins.


In the Supreme Court, the government argues that Congress had authority to enact the individual mandate under the commerce and necessary-and-­proper clauses. Congress’ taxing power, says the government, is also an independent ground for upholding the requirement. In the government’s briefs, those three arguments are crafted with a heavy sprinkling of analysis from opinions upholding the mandate by the U.S. courts of appeals for the 6th and D.C. circuits written by two conservative stalwarts, judges Laurence Silberman and Jeffrey Sutton.

The government rejects the challengers’ argument that Congress, rather than regulating commerce, created commerce by forcing individuals to enter into commerce by buying health insurance.

“That characterization is not faithful to what Congress actually did in the Affordable Care Act,” Verrilli wrote for the government. “The minimum coverage provision addresses economic effects that already exist in the health-care market because the uninsured as a class routinely consume health care they cannot afford. That is the activity Congress is regulating.”

And Verrilli countered the claim that if Congress can require individuals to buy health insurance, it can mandate the purchase of other commodities, like broccoli or a car.

“In markets for those goods, there is no pre-existing economic activity analogous to the uncompensated consumption of health care, and thus no substantial economic effect like the massive risk-shifting and cost-shifting that occurs in the health-care and health-insurance markets,” he wrote.

The challengers contend that the mandate is not a straightforward regulation of economic activity because it neither addresses the “health care services” market nor regulates the method of financing purchases in that market. “All the mandate does is force individuals to purchase insurance, which they are free to use or not use in the event that they actually need health care services,” Clement wrote.

The government’s argument that the mandate is necessary and proper to achieve its legitimate ends, he wrote, “fails at the outset because the mandate is not a ‘Law…for carrying into Execution’ the power to regulate interstate commerce. It is a law for carrying into execution a power that Congress does not have: the power to compel individuals to enter into commerce.”

And the states and the private individuals also take on the government’s claim that the mandate operates as a tax law because the only consequences for failure to comply are tax consequences. They say they are challenging the mandate, not its enforcement mechanism.

“The mandate is a distinct regulatory requirement that must be supported by a distinct regulatory authority,” Clement wrote. “The federal government may not avoid that reality by attempting to re-conceptualize the mandate as a tax statute that Congress made a deliberate decision not to enact.”


Jones Day’s Carvin said the initial challenge for the law’s opponents was “to get people to take us seriously. I think we’ve more than accomplished that. Now I think the challenge is just to make clear what is to me quite obvious: Both the Constitution and the Court’s precedents preclude the mandate, and acceptance would not have any limiting principle.”

Whether a limiting principle to Congress’ commerce clause power exists if this mandate is constitutional is crucial to the Supreme Court case, Carvin said: “I think the government would leap to a limiting principle if they could figure one out. It’s not like [Verrilli] has a drawer full of limiting principles; it’s because he doesn’t have a drawer-full that survive the laugh test.”

But at a recent health care briefing sponsored by Scotusblog/Bloomberg, former acting Solicitor General Neal Katyal, who defended the act in the lower appellate courts, said limiting principles are fairly easy to articulate. The Bill of Rights, he said, cuts against any structural power in Article I, Section 8. The right to privacy, he said, would preclude the government from forcing individuals to buy broccoli because the vegetable will make them healthier and thus reduce health care costs.

The most important limiting principles, he added, were in two Supreme Court decisions that restrain the government in commerce clause cases: U.S. v. Lopez (striking down in 1995 the federal Gun-Free School Zone Act) and U.S. v. Morrison (invalidating in 2000 provisions in the federal Violence Against Women Act).

“The most important limiting principle that you can get out of those cases is this: When Congress is acting to solve a truly national problem, that is one in which the states aren’t separately competent to solve, that’s when its power is at its apogee,” said Katyal, who is now a partner at Hogan Lovells in Washington. “The only way to solve this health insurance crisis is a truly national solution.”

Marcia Coyle can be contacted at mcoyle@alm.com.