Supreme Court drama turns to arguments over mandate

Two years after signing the healthcare reform act into law, the Obama administration will appear before the Supreme Court on Tuesday to explain why the landmark law was a constitutional exercise of federal power.

President Barack Obama's solicitor general, Donald Verrilli Jr., is due in court Tuesday morning to lay out the constitutional case for the requirement that nearly all Americans acquire health insurance—by far the most controversial aspect of the sprawling Patient Protection and Affordable Care Act.

The so-called individual mandate was challenged in about two dozen federal courts across the country, including in Pensacola, Fla., where 26 states and state officials filed their landmark lawsuit to overturn the coverage requirement and the entire reform law. That lawsuit, on appeal through the 11th U.S. Circuit Court of Appeals in Atlanta, goes to the Supreme Court Tuesday during the second of three days of arguments on the law.

“This is not about healthcare. This is about following the Constitution,” South Carolina Attorney General Alan Wilson told reporters in a news conference Monday inside Florida House, the Florida “embassy” in Washington that's just down the street from the Supreme Court.

The states argue (PDF) that the U.S. Constitution's commerce clause does not give Congress the power to force people to purchase private products so that they can be regulated. The law's proponents say the uninsured are already engaged in commerce by choosing to cover unexpected healthcare expenses by either paying out of pocket or shifting costs to the insured population.

The individual insurance mandate is expected to add at least 14 million Americans to the insurance rolls when it goes into effect in 2014. The provision was intended as a financial backstop for commercial insurers who are forced under the law to offer health insurance to beneficiaries without regard to pre-existing conditions.

Much of that new coverage is expected to be offered through state-based insurance exchanges and subsidized on a sliding scale for lower-income recipients who make too much to qualify for Medicaid.

Together with the reform law's mandated expansion of Medicaid eligibility criteria, the reform law is projected to eventually increase insurance coverage to 32 million more Americans. The U.S. Census Bureau says that in 2011, about 50 million Americans lacked insurance coverage, and their healthcare costs add more than $1,000 a year to commercial family health coverage, according to pro-reform advocacy group Families USA.

Obama administration officials say (PDF) that the costs of uncompensated care are therefore real and ripe for congressional regulation, including the expansion of new market controls.

“Although the national government is one of enumerated powers, ‘a government, entrusted with such' powers ‘must also be entrusted with ample means for their execution' … Thus, review of Congress' choice of means is particularly deferential,” Obama administration attorneys wrote, citing the two often-cited Supreme Court precedents in the individual mandate debate, United States v. Comstock and Gonzales v. Raich.

Critics—including the 26 states, two private citizens and the National Federation of Independent Business—say such an expansion of powers is not justified no matter how noble the goal.

“Although Congress has the power to make a regulatory scheme effective by eliminating barriers to its complete enforcement,” the NFIB wrote in its brief to the court (PDF), that “Congress lacks the power to offset the costs of a fully executed scheme by conscripting strangers to that scheme who are otherwise beyond its commerce power.”