- The Washington Times - Monday, February 6, 2012

President Obama can’t expand health care coverage and then mandate every American purchase coverage to subsidize the added costs, a group suing to block Mr. Obama’s health care law said Monday as it laid out arguments in advance of a landmark Supreme Court case scheduled to be heard next month.

In a brief filed with the court, the National Federation of Independent Businesses charged that the law essentially forces citizens to subsidize insurance companies that must provide far-broader coverage than under previous rules.

At the center of the fiery debate over the 2010 Affordable Care Act is the “individual mandate,” a requirement for all Americans to obtain coverage by 2014 or pay a fine.

“The mandate is an unprecedented and draconian regulation that fails to accommodate the states’ traditional regulatory role and compels individuals to subsidize legal strangers through economically disadvantageous contracts,” the business federation said in its brief.

Last month, the Obama administration, in its own filing, offered a three-prong argument for why it believes Congress has the right to mandate coverage: that the mandate helps solve a problem of national concern, that it regulates economic behavior that deals with regulating interstate commerce, and that the penalty in the law for failing to purchase coverage falls within Congress‘ taxing power.

The court also will rule on whether the rest of the law can stand without the mandate - especially two provisions called guaranteed issue and community rating that ban insurers from denying coverage and charging higher premiums to patients with pre-existing conditions.

With the hearing seven weeks away, each side has combed the Constitution and past court cases for arguments to strengthen their position.

The administration has invoked three powers afforded to the government by the Constitution: the power to regulate interstate commerce, the power to enact “necessary and proper” laws to accomplish its duties, and the power to tax.

Speaking with reporters Monday, attorneys for the business federation focused on the “necessary and proper clause,” saying it doesn’t afford the government as much latitude as the administration is trying to claim.

Karen Harned, executive director of the group’s legal center, said the mandate tries to “co-opt” Americans into the insurance market to help pay for the sicker patients insurers must now cover. She said that under this reasoning, the government could require Americans to buy virtually anything.

“This leads to the consequence of Congress being able to force us to participate in markets where they see a crisis,” Ms. Harned said.

They also reiterated their arguments that if the court allows the government to mandate health coverage under the commerce clause, there will be no limits that what it can regulate.

“Forcing people into commerce does not regulate commerce,” the brief said. “Otherwise, Congress could compel the purchase of any product.”

The Obama administration also submitted a brief Monday dealing with another question the Supreme Court justices will consider - whether challenging the law is premature under a provision known as the “Anti-injunction Act.” Hoping for a speedy resolution, both sides agree that the provision doesn’t apply.