Attorney: 'ObamaCare reinvigorates states' to challenge federal intervention

Attorneys arguing against President Obama’s healthcare law say the case is nothing short of a referendum on unchecked federal power.

The Supreme Court justices will debate next week whether to take one of the cases challenging the constitutionality of the law’s individual coverage mandate. They’re widely expected to take the suit filed by 26 states and the National Federation of Independent Business.

Attorneys in that suit said at a Heritage Foundation event on Thursday that they expect the court to rule in their favor on the mandate — and that the stakes couldn’t be much higher.

Michael Rivkin, who represents the 26 states suing over the mandate, said he expects the court not only to side with the states on the mandate but also that healthcare will spark a broader protest in the courts over federal regulation, just as it has done with conservative voters.

“ObamaCare really has reinvigorated the states” to challenge federal intervention, he said.

Rivkin said he expects to see more states challenging environmental rules as well as federal involvement in education.

Michael Carvin, who represents NFIB, said there’s simply no way to square the mandate with the Supreme Court’s previous interpretations of the Constitution’s commerce clause. The clause allows Congress to regulate interstate commerce, and the Justice Department says that’s the source of Congress’s ability to require almost all Americans to buy insurance.

“No rational person would think that means you can regulate people who are not involved in commerce,” he said. “If you cross that barrier, obviously they can regulate anything.”

Heritage’s Todd Gaziano, who is not directly involved in the healthcare suit, said there is no way for the justices to uphold the mandate without also eroding “all limits on federal power.” He said Justice Anthony Kennedy, the court’s traditional swing vote, will side against the healthcare law because Kennedy will be wary of eliminating “all protections against government tyranny.”

The Obama administration, of course, argues that the case’s implications are far less severe. Although the Justice Department has acknowledged that the mandate is unprecedented, it says health insurance is a unique market: The costs of caring for people without insurance are passed on to the insured, and to taxpayers, in a way that doesn’t happen in other markets.

The government also argues that Congress can compel people to buy insurance because no one can guarantee that they’ll never need healthcare services. The mandate doesn’t require people to use a certain, private service, the Justice Department argues; it simply regulates whether and how they’ll pay for services that everyone needs at some point.

In addition to hyping the ramifications of the mandate, the conservative lawyers said they expect the court to rule in their favor on some of the case’s more nuanced issues.

Rivkin isn’t giving up on the states’ challenge to the health law’s Medicaid expansion, even though no lower court has found that piece unconstitutional. The states have asked the Supreme Court to make Medicaid part of its hearing, which the Justice Department opposes.

“To me, there could be no more palpable example of coercion,” he said at the Heritage event.

And Carvin, the NFIB attorney, expressed confidence on the issue of severability — whether the court would have to strike other parts of the healthcare law, and perhaps the whole thing, if it finds the mandate unconstitutional. Lower courts have reached differing conclusions. Carvin said there’s reason to believe the Supreme Court will strike the entire law.

The Justice Department argues that if the mandate falls, so should provisions that require insurers to cover sick people and prohibit them from charging those people higher prices. Those policies would dramatically increase the cost of insurance without the individual mandate. But the law is full of other, unrelated provisions, such as a tax on tanning beds, a new class of prescription drugs and menu labeling in restaurants. The government says those policies don’t have to fall by the wayside with the mandate.

But that’s not how the Supreme Court analyzes severability, Carvin said. He said that without the mandate, the requirement to cover everyone, and the ban on discrimination against sick people, “you’ve ripped (out) the guts of the act.” And the question isn’t whether “the limbs” can function on their own, but whether Congress still would have passed the law without the mandate, he said.

“This act cannot possibly work in any manner contemplated by Congress,” Carvin said.