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Obama, health care foes prepare for high court

Arguments about law likely to be heard in late March

- The Washington Times - Sunday, January 8, 2012

Inching closer to a landmark Supreme Court decision, President Obama's administration and opponents of his health care law are drawing the legal battle lines for a late March hearing when the justices will consider challenges to the embattled legislation.

The first round of legal briefs was due on Friday, with the administration defending an individual mandate requiring Americans to obtain health coverage or pay a fine. One the other side, the National Federation of Independent Businesses (NFIB) argued that if the mandate is struck down, the rest of the law will topple as well.

And on Tuesday, 27 states also challenging the law are expected to submit their arguments for why they say the law's massive Medicaid expansion is unconstitutional.

As all sides prepare for three days of oral arguments, at stake are precedent-setting issues about what Congress can regulate and the reach of federal power.

The challengers fear that if the individual mandate is upheld, there will be no limits on how far Congress can regulate, while the administration says the mandate is crucial to closing the uninsured gap and curbing the cost of health care.

In a weird twist, both sides at least partially agree on two of four key questions in play: that major parts of the law can't be enacted without the individual mandate — in an issue called "severability" — and that the challengers have grounding to sue.

The hottest points of friction center on the individual mandate and the Medicaid expansion.

Offering a three-prong defense of the mandate, the administration is arguing that it helps solve a problem of national concern, the commerce clause gives Congress authority to regulate economic behavior and Congress can use its taxing power to impose a penalty for failing to purchase coverage.

The administration's defense required it to argue that the penalty for failing to purchase coverage is a tax — something President Obama had previously denied.

But senior administration officials speaking to reporters Friday brushed off Mr. Obama's comments, saying the position was revised after lower courts overwhelmingly defined the penalty as a tax.

"I think initially every district court considering the issue disagreed with us," one official said, speaking on the condition of anonymity. "So we went back to the drawing board and evaluated it and reached the judgment that we do not think it applies, and that is our position now."

The officials also emphasized a core piece of their argument: If the law didn't require all Americans to obtain coverage, banning insurers from denying coverage wouldn't work — largely because fewer healthy Americans would enroll, leaving companies with a disproportionate share of high-risk patients.

"The Affordable Care Act addresses the widespread lack of insurance coverage," the official said. "In particular, the act bars insurers from denying coverage or charging higher premiums to individuals who have pre-existing conditions. But in order for that to work, it orders individuals to get coverage or pay a penalty."

The NFIB focused its Friday arguments on the question of severability, also arguing that as the law's centerpiece, the mandate is essential to accomplishing other major goals of the legislation, like extending coverage to some 50 million uninsured Americans and lowering the cost of health care.

Without the mandate, the rest of the law would topple, said Karen Harned, executive director of the NFIB Small Business Legal Center.

"The individual mandate was really essential," Ms. Harned said. "It was integral to the reason for the law, which was near universal coverage and lower cost. So if you take that out, you're left with a law that doesn't address what Congress really meant for it to address."

Thirty-six Senate Republicans agreed, filing an amicus brief late Friday that said the court would leave behind a "patchwork alternative" if it overturned the mandate but allowed the rest of the law to stand.

"Several proponents of the law argued in committees and on the floor that the individual mandate was essential to their view of health care reform and that the legislation would not work without the mandate," the brief said.

"More than merely a component of the insurance reforms, the majority in Congress believed that the entire health care reform effort of the PPACA was unsustainable without it."

The briefs were just the first wave of arguments to be filed, with more expected from both sides in late January and early February.

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