- The Washington Times - Friday, January 6, 2012

President Obama’s administration and opponents of his health care law filed their first briefs on Friday, drawing the legal battle lines for a week of arguments in March in which the Supreme Court will scrutinize challenges to Mr. Obama’s signature legislative achievement.

In this first round of briefs, the parties offered their arguments on two key questions the court will consider: whether an “individual mandate” under the law requiring Americans to obtain health coverage or pay a fine is constitutional and whether the mandate is essential to the rest of the law—an issue called “severability.”

All sides agree that much is at stake in the lawsuit, which raises fundamental questions of the scope of federal power and how extensively the Constitution’s commerce clause can be interpreted.

Standing its ground on the individual mandate, the administration is offering a three-pronged argument: 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.

Speaking to reporters on Friday afternoon, senior administration officials emphasized that if the law didn’t require all Americans to obtain coverage, other key provisions of the law would not be effective.

“The Affordable Care Act addresses the widespread lack of insurance coverage,” one 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 National Federation of Independent Businesses (NFIB) and 26 states are leading the opposition to the law. Reflecting the political stakes involved in the court battle, some three dozen Republican senators filed a separate “amicus” brief to the court outlining their opposition to the law.

In an odd twist, the two sides partially agree on at least one question under consideration—that the law as a whole cannot stand if the individual mandate is ruled unconstitutional.

The NFIB filed a brief on Friday arguing that as the law’s centerpiece, the mandate is essential to accomplishing other major goals of the legislation, such 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, adding, “it was intregral 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.”

The GOP lawmakers 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 [health care law] was unsustainable without it.”

The administration doesn’t view the individual mandate as quite that crucial. But it still agrees that removing the mandate would be disastrous to the provisions that ban insurers from basing prices and coverage on health risk or other factors.

The briefs were just the first wave of arguments to be filed, with more due from both sides in late January and early February. On Tuesday, 26 states, led by Florida, are scheduled to file their brief arguing that a massive Medicaid expansion under the law also is unconstitutional.

• Paige Winfield Cunningham can be reached at pcunningham@washingtontimes.com.

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