Friday, January 6, 2012
Parties today filed opening briefs in the cases challenging the federal Affordable Care Act, now before the Court. We covered the Court's grant and argument schedule here.
The government filed its opening brief defending the minimum coverage provision, also called the individual mandate, under the Commerce Clause, the Necessary and Proper Clause, and Congress's taxing power. As we might expect, the government emphasizes the congressional findings in the act and the data supporting its argument that everyone is in the relevant market. It defends Congress's power to enact the provision principally as an essential part of a larger regulatory scheme:
The minimum coverage provision plays a critical role in that comprehensive regulatory scheme by regulating how health care consumption is financed. It creates an incentive for individuals to finance their participation in the health care market by means of insurance, the customary way of paying for health care in this country, and it works in tandem with the Act's other provisions to expand the availability and affordability of health insurance coverage. In particular, the minimum coverage provision is key to the viability of the Act's guaranteed-issue and community-rating provision.
Brief, at 17-18.
The government also defends the provision as a stand-alone regulation of commerce. In particular, it argues that the election to self-insure is an economic act that Congress can regulate and hotly disputes the opponents' claim that some self-insured are non-cost-shifters, thus not subject to regulation:
The circumstances of this case well illustrate the flaws in respondents' premises. At the outset of this litigation, respondent Mary Brown thought she had made a rational choice to forgo insurance . . . . That belief proved incorrect. Ms. Brown and her husband recently filed a petition for bankruptcy, and they list among their liabilities thousands of dollars in unpaid medical bills, including bills from out-of-state providers.
Brief, at 44. The government forcefully challenges the claimed distinction between "activity" and "inactivity," and argues that the self-insured aren't "inactive" in this market, anyway. Brief, at 47-52.
Severability is a remedial inquiry that turns on legislative intent. The ultimate question is not whether the balance of an act can function independently without an invalidated provision. That is a necessary, but not sufficient, condition for preserving the balance of the statute. The ultimate question is whether Congress would have enacted the statute without the invalidated provision. Here, the answer is clear[: No.]
Brief, at 24.
Recall that the connection between the government's principal argument--that the minimum coverage provision is an essential part of the larger ACA--and the state and private petitioners' argument--that the minimum coverage provision is not severable--was a focus of Judge Vinson's ruling (holding that the minimum coverage provision exceeded Congress's authority, and that it was not severable, because the government said that it formed an essential part of the ACA) earlier in this litigation.
The briefs today break little new ground. The fundamental arguments are familiar, even if they're sharpened, considerably.