If the 21 states that are suing the federal government over the constitutionality of health reform have failed to explain where their interpretation of the constitution fit within current law, the Department of Justice’s brief in a separate case filed in federal court in Detroit, Michigan goes to great lengths to argue that Supreme Court precedent is on its side. Responding to a suit filed by the Thomas More Law Center challenging the individual requirement to purchase health insurance coverage, DOJ cites at least 69 different instances where the Court has disagreed with the plaintiff’s interpretation of the law. Read the full brief HERE.
Below is the basic summary and a preview of the arguments we’ll hear during the much anticipated case led by Florida attorney general and gubernatorial candidate Bill McCollum:
1) Plaintiff have no standing: The plaintiffs, who filed suit “four years before the provision they challenge takes effect, demonstrate no current injury, and merely speculate the law will harm them once it is in force.” The plaintiff’s insurance status could change between now and 2014 — ensuring that they don’t have to pay a penalty for not purchasing coverage. But even if they choose not to obtain minimum coverage “and incur the penalty, they can fallow the procedures prescribed in law and sue for a refund, without the bar of sovereign immunity,” the government’s brief states.
2) Can’t get around the Anti-Injunction Act: The Anti-Injunction Act, forbids courts from “restraining the assessment or collection of any [federal] tax” whether the suit is by the taxpayer, a state attorney general, or anybody else. Since the plaintiffs themselves allege that the penalty under the mandate is an “unconstitutional tax,” they recognize that they fall within the scope of the Act.
3) Insurance = commerce. Congress can regulate commerce: Congress has determined that the individual mandate “is an essential part of this larger regulation of economic activity,” and that its absence “would undercut Federal regulation of the health insurance market.” “The predicate of this finding, and a distinguishing feature of the health care market, is that virtually everyone will need medical services at some point. Congress had a rational basis to conclude that economic decisions not to purchase insurance to pay for these services, taken in the aggregate, substantially affect interstate commerce, by among other things, shifting costs to third parties.” In fact even the failure to buy a product constitutes commerce in this case. The brief notes, “individuals who do not carry insurance are nonetheless participants in the health care market, and those uninsured often receive treatments from traditional providers for which they either do not pay or pay very little, which is known as ‘uncompensated care.’ Congress found that the cost of providing uncompensated care for the uninsured was $43 billion in 2008.”
4) Congress has authority to “provide for the…general Welfare”: The brief notes that the “determination of what furthers the general welfare is for Congress to make…The minimum coverage provision, either considered by itself…falls squarely within Congress’ ‘extensive’ General Welfare authority.”
Significantly, the government’s brief doesn’t even mention the 10th amendment — reiterating once again that it only applies to powers that are not relegated to the federal government. Since the court has concluded that the federal government can regulate interstate commerce (and by extension the purchase of health insurance coverage), the 10th amendment argument is moot.
The Washington Post reported this morning that the private lawyer advising the Florida-led lawsuits has said “he anticipated that the judge would hear arguments on the case as soon as mid-September.” “It’s an aggressive schedule,” he said.