A Rare Glimpse of the Real Legal Debate Over Health Care

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It’s been a disheartening week for supporters of Democratic health care reform. On Monday, a second federal judge ruled that their signature health reform law is unconstitutional. Democrats maintain that the Affordable Care Act – including its individual mandate – is perfectly legal. They point out that two other federal judges have agreed with them and that the Supreme Court’s opinion is really the only one that matters and that won’t come for many, many months. But this “move along, nothing to see here” strategy hasn’t really been getting much traction. Republican-led court challenges, especially the successful ones, have been (understandably) attracting all the attention.

So earlier today, in a very large room on Capitol Hill, Democratic Sen. Dick Durbin convened a hearing on the constitutionality of the individual mandate. Invited to testify before the assembled judiciary committee, controlled by Democrats, were five esteemed attorneys. Three, including Reagan solicitor general Charles Fried, had previously stated they believed that the individual mandate was perfectly constitutional.

Rather than shift the discussion toward the side of constitutionality, however, the Durbin hearing actually legitimized the legal debate now underway. Even though the majority of committee members and witnesses in the room were on the side of the Affordable Care Act’s constitutionality, the conversation that ensued was hardly a one-sided partisan demonstration of power. It was more like a thought-provoking and incredibly friendly law school class discussion.

At issue was the Affordable Care Act provision that requires, beginning in 2014, every American to maintain health insurance coverage. Under this rule, those without public insurance or work-based coverage would be required to purchase policies in the private market. If they don’t, they would be subject to large fines. This mandate is far beyond what the federal government can do under the Constitution, argue those challenging the law in court, who further say if the individual mandate is allowed to stand, there will be no limits on federal power. Defenders of the provision say the health care system and health insurance system clearly fall under the category of “commerce,” something the federal government has the right to regulate.

Walter Dellinger, a solicitor general under Clinton and a Duke law professor, characterized the individual mandate as “rather unremarkable” and said it was “no more intrusive than Social Security or Medicare.” Michael Carvin, a Reagan Administration attorney, said the individual mandate amounted to regulation of “inactivity” – not buying insurance – an unprecedented overreach by the federal government. The Atlanta Journal Constitution‘s Jamie Dupree reporting on the hearing, wrote that the assembled legal minds, “tossed around the names of cases like some sports nut might know the roster of the 1972 Chicago Black Hawks or the 1968 Detroit Tigers.” It’s true. All five lawyers, who referred to each other by their first names, were clearly very well-versed in the issues at hand and seemed to enjoy mentally sparring with each other, citing everything from the Federalist Papers to Supreme Court cases from 1905 to 2005.

Fried pointed out that if the Democratic authors of the Affordable Care Act had merely structured the individual mandate penalty as a straight tax, the legal battle now underway could have been avoided. If the law, for instance, taxed every American and gave an equivalent tax break to those who can prove they have health insurance, there would be no debate. Such a design would be functionally equivalent to the individual mandate. The Democratic majority Congress “didn’t do this for political reasons,” said Fried. “It didn’t want to have this viewed as a tax and now they are paying the price in that they have to confront this discussion.”

Watching the attorneys and senators, many of whom were also lawyers, banter back and forth, one could easily imagine the discussion taking place before the Supreme Court. Neither side walked away from today’s conversation with a political victory in hand. On the contrary, the hearing was a welcome bit of honest debate in a climate in which partisan rhetoric sometimes seems to take over all conversation in the public eye.