In one lawsuit against the Affordable Care Act, two Virginians—Michele Waddell and Joanne Merrill—said Congress had no right to interfere with their personal decisions to pay for their healthcare out of pocket instead of buying insurance. The law will force nearly all Americans to buy insurance or pay an income tax penalty by 2014.
Waddell and Merrill’s decisions left them “outside the stream of commerce,” and thus outside Congress’ ability to regulate their inactivity in the health insurance marketplace, said Staver, the lead attorney in that case (Liberty v. Geithner) for Liberty University, an evangelical Christian college in Lynchburg, Va.
Acting U.S. Solicitor General Neal Katyal argued that Waddell and Merrill’s decisions were in fact part of an overall pattern of profound economic activity. Congress, in its findings supporting the healthcare law, said that in 2008 Americans who received care without having insurance shifted $43 billion in costs to those with means to pay.
“What we’re saying here is, Congress is regulating activity,” Katyal said. “The activity is participation in healthcare markets. That is a virtually universal feature of human existence.”
Judge Diana Gribbon Motz asked whether Congress, in trying to force citizens to behave responsibly in healthcare, was opening itself up to the argument that it was becoming a “government Big Brother” that could also force citizens to, for example, eat broccoli or forgo trans fat.
Katyal responded that healthcare was fundamentally different from other markets, because healthcare will be used by virtually every American at some point, and also because hospitals are forced to provide the services regardless of ability to pay.
“You can’t walk up to the GM lot, take a car and give the bill to your neighbor,” Katyal said. “Someone is going to pay. And that is what Congress found, to the tune of $43 billion.”
In rebuttal, Staver disagreed: “If you look at the food industry, there is universal participation in that. And there are universal consequences in consuming wrong food. … If Congress can do this here, in health insurance, Congress can force others to consume other kinds of food.”
After extended arguments in Liberty, the same panel of judges held a narrower discussion in the lawsuit Virginia v. Sebelius, limited mainly to a discussion of whether the state had improperly passed a law that contradicted the federal healthcare law’s insurance mandate for the express purpose of giving itself standing to challenge the reform law.
Virginia Attorney General Kenneth Cuccinelli said in a news conference after the oral arguments that he expects the cases—along with at least two others in the circuit courts currently—to eventually go to the U.S. Supreme Court, which he predicted could issue a ruling as early as June 2012.