Obama shifts healthcare defense

The Obama administration has shifted its legal arguments as it prepares to defend the president’s healthcare law before the Supreme Court.

Written briefs in the landmark case increasingly have focused on a part of the Constitution that didn’t get much attention in lower courts.

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Some legal experts say the shift could steer the case in a direction that would make Justice Antonin Scalia more likely to uphold the healthcare law’s mandate requiring individuals to purchase health insurance.

Oral arguments are set to begin March 26, and the justices are expected to give a ruling in June, just months before the presidential election.

A ruling that the mandate is unconstitutional could make it nearly impossible to implement other parts of the healthcare law — which is exactly the point the Department of Justice is highlighting in its most recent briefs.

Justice has aggressively defended the mandate as its own regulation of economic activity, but is now stepping up a separate argument emphasizing that the mandate is part of a broader regulatory scheme.

The shift moves the focus of Justice’s argument from the Commerce Clause of the Constitution to the Necessary and Proper Clause, which says Congress can make laws that are necessary for carrying out its other powers.

The briefs give a long history of failed efforts to expand healthcare coverage and say the new law’s purpose was to reform the overall system.

“The minimum coverage provision is … necessary to achieve Congress’s concededly valid objective of reforming the interstate market in health insurance,” the Justice Department said in its first Supreme Court brief on the merits of the mandate.

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The brief argues requiring insurance companies to cover everyone and banning them from charging sick people higher prices are regulations that the Constitution clearly protects. The mandate, Justice argues, is a “necessary and proper” way to carry out those regulations without causing the cost of insurance to skyrocket.

Karen Harned, a lawyer with the National Federation of Independent Business, which is a party to the suit challenging the healthcare law, agreed that the debate has shifted toward the Necessary and Proper Clause. But she insisted it’s still a losing case for the White House.

“They can’t force people to buy cars because of federal safety regulations that raise the price of cars,” Harned said. “They put a new regulation on somebody that causes the price of that product to go up — they can’t go in and fix it by requiring everybody to buy that product.”

Tim Jost, a Washington and Lee University law professor and a prominent supporter of the healthcare law, said the mandate’s critics invited the new line of defense by urging the court to strike down the entire law. The states say the mandate cannot be “severed” from any of the law’s other provisions. That position basically concedes that the mandate is necessary to make other reforms work, Jost said.

“I think that is their strongest argument,” Jost said of the Necessary and Proper Clause.

Justice is by no means abandoning its argument that the mandate is Constitutional under the Commerce Clause.

Both critics and supporters of the law think the administration could be trying to appeal to Scalia with the shift, as the line between the Commerce Clause and the Necessary and Proper Clause was central to an important decision of Scalia’s.

The case, Gonzales v. Raich, is one of the closest precedents for the healthcare suit. It asked whether the federal government could prevent people from growing their own medical marijuana, in a state where it’s legal, rather than buying marijuana from a sanctioned dispensary.

The court ultimately ruled on Commerce Clause grounds, but Scalia wrote in a separate opinion that it didn’t matter whether the limits on individual growers were an acceptable regulation of commerce. The government could step in as a “necessary and proper” way of carrying out its broader power to criminalize drug use, he wrote.

The Justice Department has been citing Raich since its first filing in any of the challenges to healthcare reform. But it did not draw as strong a parallel in lower courts, even those that upheld the mandate.

Simon Lazarus, a lawyer with the National Senior Citizens Law Center, said the Justice Department may well be targeting Scalia’s vote by describing the mandate in the same terms addressed in his Raich opinion.

“There is simply no way that you could take that even remotely literally and not uphold the mandate,” he said.

Still, Scalia’s staunch conservative record leaves many critics of the law confident he will not rule the healthcare mandate is constitutional, particularly given the politically charged atmosphere surrounding the case.