- The Washington Times - Monday, March 12, 2012

As President Obama’s health care law heads for an epic Supreme Court showdown this month, the administration and its opponents are struggling to convince the court that it can rule in their favor without upsetting years of precedent or opening the door to all sorts of mischief.

With three full days of arguments set to begin March 26, the government has the tough task of arguing that the justices can uphold the federal government’s power to force all Americans to buy insurance without giving legal sanction to other mandates, such as forcing everyone to buy healthy food or join a gym.

But the more than two dozen states suing to overturn the law face a tall hurdle of their own: convincing the court that it can strike down new Medicaid rules embedded in the law without giving the states carte blanche to ignore the strings that are attached routinely to federal spending on such items as education, transportation and the legal drinking age.

The challenge for each side, analysts say, is to find a “limiting principle” that at least five justices will embrace. When courts consider whether the government is acting within constitutional boundaries, they want a clear limit to its powers, court watchers say.

“The states say this is a unique situation, it doesn’t apply anywhere else,” said Timothy S. Jost, a professor at Washington and Lee University School of Law. “Well, that’s exactly the same argument the federal government is making to the minimum-coverage argument. I think both sides have their limiting-principle problem.”

Limits of mandates

The crux of the challenge to the health care law focuses on the individual mandate, which requires every American to have health insurance or face a stiff tax penalty designed to cover the costs for being uninsured. The government argues that Congress has long had the authority to regulate health insurance under the interstate commerce clause of the Constitution, and forcing participation is just a way of bolstering that market.

The plaintiffs charge that the mandate doesn’t regulate existing commerce. Instead, they say, it violates individual liberty by forcing people to engage in commerce in the first place by requiring them to purchase insurance they may not want or need. If the government can order citizens to buy health insurance, the argument goes, what is to stop Washington from mandating other healthful activities such as buying broccoli or signing up for a gym membership?

Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit posed that very question last fall, asking the administration’s attorneys whether it would be unconstitutional for the government to require Americans to buy broccoli. The attorneys said no, but added that “it depends.” The court ultimately upheld the law.

In arguments to the Supreme Court, the administration’s attorneys have raised their own questions about the scope of the claims by leading opponents of the law, who include a majority of states and the National Federation of Independent Business, the country’s top small-business lobby.

The federal law would dramatically expand coverage under Medicaid — the public health program for the poor, which is funded by federal and state governments. States have filed lawsuits arguing that they should be allowed to opt out of new requirements. The federal government can’t order the states to comply, but it can condition the acceptance of vital federal money by the states on adherence to the strings attached to the money.

The Obama administration argues that if states can opt out of these requirements, there is no telling what other federal funding rules they will ignore.

Attorneys on both sides have lined up Supreme Court decisions to bolster their arguments. The administration has pointed to the 1942 case Wickard v. Filburn, in which the court said the government has the power to regulate farmers growing wheat purely for private consumption, on the theory that wheat is traded nationally.

Also in the 2005 case Gonzales v. Raich, the court said Congress may criminalize home-grown marijuana even if states have approved it for medicinal purposes.

But in two other major cases, the court has interpreted the interstate commerce powers more narrowly. In U.S. v. Lopez, it rejected the government’s argument that carrying a gun in a school zone qualified as “interstate commerce.” In U.S. v. Morrison, the court said gender-motivated violence isn’t subject to regulation under the commerce clause.

The bottom line, opponents say, is that until Mr. Obama’s health care overhaul was enacted, the government never required Americans to purchase a commercial product from a third party — and the court would be venturing into new territory if it gave the Obama administration the go-ahead.

“As a general rule, you have a much harder row to hoe if you’re trying to get the court to do something new,” said Robert Alt, a senior legal fellow at the Heritage Foundation.

Financial strings

On the Medicaid challenge, the states also have argued that the government is trying to do something it hasn’t done before — in degree if not in kind.

They say the expansion demanded is so massive — requiring states to cover residents making up to 133 percent of the federal poverty level in their programs — and involves so much federal money that even though individual states can technically opt out of the program altogether and turn down Washington’s money, it would be politically suicidal to do so.

“There are multiple states that receive more than $1 billion in funding,” Mr. Alt said. “You can’t just opt out.”

The administration and supporters said that allowing states to reject the Medicaid rules could permanently alter their relationship with the federal government and would threaten to dismantle federal-state programs in areas such as education, child welfare, highway safety and discrimination.

When Congress, for instance, decided to raise the national drinking age to 21, it told states with lower drinking ages that they would get fewer federal highway dollars unless and until they “voluntarily” changed their laws.

“This would upset the nature of our federal government far more than if they decided the mandate is unconstitutional,” Mr. Jost said. “There goes dozens and dozens and dozens of federal programs, and it would have a radical effect on the nature of federalism in the U.S.”

Each side is punctuating its arguments with charges that the other side can’t find a limiting principle.

Randy E. Barnett, a Georgetown law professor who is helping the National Federation of Independent Business, pointed to a 1987 case in which the Supreme Court said the federal government can attach strings to federal dollars — but acknowledged that there is a point at which the financial inducements can become coercive.

“Whereas the government has offered no limiting principle whatsoever to its claim of power under the commerce clause, the Supreme Court itself in South Dakota v. Dole offered the distinction between incentives and coercion,” Mr. Barnett said.

Ian Millhiser, a policy analyst for the Center for American Progress, said it’s “just silly” to call the Medicaid expansion coercive. That has never been a reason for the Supreme Court to strike down a federal spending program, he said.

On the individual mandate, he said, it’s a “red herring” for opponents to suggest that it would destroy limits on federal authority.

“There are many, many laws that cannot be enacted under Congress’ ability to regulate commerce,” he said. “Non-economic laws such as a federal murder law, a federal rape law, a federal assault law, a federal child-neglect statute, a federal anti-truancy law or a federal law regulating sexual morality all exceed Congress’ authority under its enumerated constitutional powers.”

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

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