Lawyers go toe to toe over health care law
June 8th, 2011
09:23 PM ET

Lawyers go toe to toe over health care law

Like top boxing prospects warming up for a title fight, lawyers for and against the massive health care law – the Patient Protection and Affordable Care Act – staged a duel in Atlanta Wednesday, over whether the law is constitutional. Several cases are winding their way through the courts, but this one is the biggest – led by the state of Florida, joined by 25 other states. In March, Federal Judge Roger Vinson ruled that a key part of the law, the so-called individual mandate, is unconstitutional. The “individual mandate” is the requirement that individuals purchase coverage if they aren’t otherwise insured through a job, or through Medicare or Medicaid.

Attorney Paul Clement, representing the state of Florida, argued that the federal government can’t force people to buy a product – in this case, insurance. “In 220 years, Congress has never seen fit to use this power.” U.S. Solicitor General Neal Katyal, defending the law, had a more complex case to make – that people without insurance are already part of the health care market – part of interstate commerce – except that when they end up needing care they don’t pay for it.

The appeals court judges – two appointed by President Bill Clinton, and one by President George H.W. Bush – asked sharp questions of both sides. Judge Stanley Marcus walked Katyal through a careful hypothetical: If the government can compel people to buy health insurance, can it compel them to buy long-term insurance, too – since few people carry it, and the costs of long-term care can be very high?

Carefully, very carefully, Katyal answered, “no.” Why not? There is not the same evidence, he said, that costs are being shifted to other people. When Clement’s turn came, Dubina opened up by asking in his strong southern drawl, “Why aren’t [uninsured] people already engaged in commerce?”

Clement's answer: “They’re not. They’re sitting in their living room.”

Marcus and Judge Frank M. Hull (a woman) sounded skeptical. After much back and forth about whether choosing not to buy insurance constitutes “inactivity” or just pushing costs on to other, insured people, Hull grumbled, “This whole inactivity business doesn’t get me very far.”

Clement also made what seemed to be a big concession – that the government would be within its rights to require that an uninsured patient purchase coverage or pay a fine, if they actually showed up with a gunshot, at an emergency room. As the battle wore on, Clement insisted this would be very different from requiring people to purchase insurance well in advance. “In 2700 pages [of the health care law], there’s no mandate to actually use the insurance.”

It’s a philosophical question, but a real-world problem. Every year, some 20 million uninsured people receive medical care in emergency departments, often paying little.  To make up for their losses, health care providers charge exorbitant prices for their services. Health insurance companies negotiate these prices down, but ultimately pass the costs onto paying customers in the form of higher premiums. As the cost of health insurance increases, a smaller percentage of people purchase it, and costs continue to increase for paying customers. It’s a cycle that the Affordable Care Act intends to break, but it remains to be seen whether the prescribed solution is ruled constitutional.

The attorneys also sparred over provisions in the law that require states to dramatically expand Medicaid coverage, or lose federal funding. Clement argued that it is an unfair threat and a huge financial burden on the states – “coercion,” in legal terms – while Katyal pointed out that previous expansions of Medicaid – in 1972 and 1989 – withstood similar legal challenges.

It’s expected to be several weeks before the court issues its ruling. Judge Dubina did offer one opinion, before sending everyone home. “This is a very difficult case.” With a wry smile to the lawyers, he added, “I doubt this is the last time you’ll argue this case. And I think the next time may be in Washington.” Next time, for the title belt.

soundoff (35 Responses)
  1. us1776

    So does this mean we will no longer be mandated to carry auto insurance?

    I think that would massively increase auto insurance rates.

    And that is exactly what exists today with healthcare. If you spread the cost over more people then the cost/person goes down.


    June 9, 2011 at 11:46 | Report abuse | Reply
    • Dobie

      You are not required to purchase auto insurance. Millions of people don't have auto insurance. You only need auto insurance if you want to drive a car on a public road. As long as you don't drive or drive only on your own property – you are good. The healthcare law requires everyone to purchase health insurance – no matter what.

      June 9, 2011 at 17:04 | Report abuse |
    • Rich

      You are not required to purchase auto insurance. It is only a requirement if you own a car. You have a choice whether or not you will own a car and therefore purchase or not purchase auto insurance. There is no way out of health insurance under that plan.

      June 9, 2011 at 17:24 | Report abuse |
    • Colorado

      The only required insurance is liability. That protects those you may cuase damage to not you or your car. It protects anyone or anything that you could hit put does nothing for you. Major difference than the healthcare law.

      June 9, 2011 at 17:27 | Report abuse |
    • The_Mick

      Those pointing out that you're not required to purchase auto insurance unless you drive a car have a great point. But what if anyone could jump into a public car and say, "It's an emergency, I need to drive," and then let those with insurance pick up the tab for any accident that was caused? That's the state with healthcare. So, if the government says, "You do not have to purchase health insurance if you'll sign a statement saying you'll never use health care providers -including emergency rooms- unless you prepay," wouldn't that eliminate those who "don't drive" so to speak?

      June 9, 2011 at 18:33 | Report abuse |
    • Russ

      God, people are stupid when they try to compare health insurance with car insurance. TRY to follow along. You do NOT have to own a car. IF you decide to buy a car, you MUST purchase LIABILITY insurance (which does not cover you, only the other person). You are ONLY required to purchase full coverage if you finance and that is a requirement of your lender NOT the government. Got it?

      June 9, 2011 at 21:00 | Report abuse |
    • to the Mick and us1776

      us1776 – auto insurance is not a mandate... it's a requirement only if you WANT to drive or own a car.

      Mick – your analogy makes absolutely no sense... "public car" you mean car jack? what make you think those who are abusing the system now will start wanting to buy health insurance before showing up at the emergency room? Wonder which name should I use Jose Martinez, Maria Alvarez, Jane Smith, or Joe Doe... no I don't have a home address, I am homeless... You can't ask me if I am legally in this this country either...

      June 9, 2011 at 21:38 | Report abuse |
    • Jerry

      Cool, they are welcome to take the premiums out of my federal income taxes.

      June 9, 2011 at 23:58 | Report abuse |
    • skarrlette

      That is what I was gonna say, first off we have to buy auto insurance its the law in Mass. So why do I have buy auto insurance and not health insurance? Which is more important. Also why do I want a bunch of people without health insurance walking around spreading disease, did anyone ever think of that? Why wouldn't you want the population to have access to protect yourself. This country seems backward in a lot of ways. Lets not be hypocritical or self serving.

      June 10, 2011 at 01:16 | Report abuse |
  2. Jeff B.

    Well, technically, us1776, there is a huge difference. The gov. does not require you to get auto insurance unless you DRIVE.
    Here, with healthcare, it is assumed that, at SOME point, you will not have a choice BUT to utilize SOME type of medical facility/professional.
    Whether there is mandatory healthcare of not, the ONE thing you can be assured of, is that the insurance companies will continue to make billions, simply because they own our politicians. Consider that the new law requires insurance companies to cover "preexisting conditions", but places NO limit upon how HIGH the insurance company can CHARGE fr the coverage. This is a SHELL game. MORE people will pay MORE money...ALL to insurance companies.

    June 9, 2011 at 12:25 | Report abuse | Reply
  3. Voltairine

    The entire health-"care industry" in this country is both GALACTICALLY DEFECTIVE and panders completely to big business at the expense of HELPING PEOPLE. Health-care reform isn't anywhere NEAR enough, but what has been passed should be honored and big fat health-"care" insurers, who are ABSOLUTE PIGS, should do what they're told are be SHUT DOWN in favor of a public option. Enough is enough! These insurance companies are NOT fighting to survive; they are fighting for their CASH COWS! They are fighting this tooth and nail in order to KEEP THEIR PROFITS even if that turns YOU or your loved ones' into SOYLENT GREEN!

    June 9, 2011 at 12:33 | Report abuse | Reply
  4. Jpaul

    us1776-Auto insurance is mandated by the state not the federal govt. Also if you do not use a car you are not forced to buy insurance. What you are writing is that we should all buy car insurance even if we do not drive so that it will make it cheaper for people that do drive. I do not agree with that. I would love to buy an expensive car- lets make it mandatory that everyone drive one so that it drives the cost down...Think that will work?

    The big issue with the health care reform is that it offloads the cost onto the middle class with a great potential for no return for them. Case in point – most large companies provide health insurance. Under the new law they can opt out and pay a fine. Guess what happens to all there employees? They now have to buy insurance on there own and they do not receive any of the "fine" to assist them with paying for it.

    We need to control the real cost not just pass the cost around. Medicare for all from cradle to grave and control the cost of equipment and drugs etc. Why not make it mandatory that the equipment and drug companies only sell at cost? if the federal government wants to get involved in commerce go after the companies that drive the cost through the roof not the average user.

    June 9, 2011 at 12:34 | Report abuse | Reply
    • Oscar

      If everything was sold at cost, who would go into business to produce equipment and drugs. If you allow a 'normal profit' (per microeconomics) to be a cost, you might get some businesses to sell, but R&D would grind to a halt.

      Medicare for all doesn't necessarily do anything to control costs (beyond doing so by decree). What is needed is for indiviudals to have a real interest in controlling costs. This means having skin in the game and not just relying on insurance (and maybe making costs public before the procedure/visit). We can still help people who need help, but our insulation from actual medical costs is not helping our stated desire to drive them down.

      June 9, 2011 at 15:19 | Report abuse |
    • Jo Ann

      Large companies could have opted out before, paying no fine, and leaving their employees to scramble for coverage. Under the new law, they are LESS likely to opt out, because now they will be fined for doing so. This reform is a step in the right direction. However, I agree that Medicare for all is the best solution. Costs are spread over people of all risk profiles, everyone has a basic health plan, hospitals get paid, paperwork is simplified since there is one insurer, and the profit motive is removed from the insurer. In the long run, this would encourage more entrepreneurship, because people won't be job-locked due to health insurance coverage, and it would be better for small employers, who struggle to provide health insurance for their employees. It is more fair than our current system, in which those who are fortunate have employee-paid health care at little or no cost, and others do without or pay exorbitant rates – using after-tax dollars, I might add. It is also the moral high ground. Everyone should have access to health care.

      June 9, 2011 at 21:54 | Report abuse |
  5. USA401

    Pretty much every body is completely wrong with this issue. HealthCare Reform has flaws. Republicans have zero ideas and cannot offer anything beyond their ideology.

    With a broken Congress we have a broken country which is why this issue will never be solved. Congress no longer serves the government(the people) they serve their parties and they serve their interest groups.

    June 9, 2011 at 12:48 | Report abuse | Reply
    • Brian

      You need to do research before you comment. The Republican's layed out their plan that allows the free markets to set costs and reformed tort law. Tort reform alone would lower insurance premiums, since they wouldn't have to pay out a million dollars because a Dr took your bandage off and left a red mark.

      June 9, 2011 at 16:57 | Report abuse |
    • Paul


      The only way the free market can effective control health care costs is if sick people who cannot afford to pay for treatment are not treated and allowed to die. That may be okay for the Randian GOP sickos, but it's not okay for those of us with morals.

      Regarding Tort reform, you are 100% wrong. Several years ago, Texas implemented massive medical tort reform, which essential eliminated almost all medical malpractice lawsuits in Texas, yet their insurance rates have continued to climb at a rate identical to every other state.

      June 9, 2011 at 17:45 | Report abuse |
  6. rickbull

    Those who are making the auto insurance equivalence argument are missing a vital point: the mandated auto insurance coverage only covers the OTHER GUY'S car, not yours. You are making an argument equivalent to forcing me to buy insurance to cover my neighbor's health, but not mine. Reading comprehension is your friend.

    June 9, 2011 at 13:17 | Report abuse | Reply
    • Oscar

      THANK YOU!!!

      June 9, 2011 at 14:50 | Report abuse |
    • Paul

      Yeah! It's not like people *have* to live! They are free to choose to die if they can't afford health insurance!

      June 9, 2011 at 17:47 | Report abuse |
  7. Oscar

    In some states, auto insurance isn't required in the traditional sense, but it is possible to 'self insure'.

    Why not the same with medical insurance and care? Insurance is simply risk mitigation – to CYA in the case of a costly situation, be it auto accident, injury/sickness, natural disaster, early death, etc. If someone can cover their own costs (say $500,000 in assets for a semi-arbitrary number), and are willing to take the risk, there is no need for them to buy insurance. This is little consolation for those with minimal assets, but it does potentially help clarify the intent of the law, since those folks with the assets may be using the medical system, but will not be burdening it financially.

    June 9, 2011 at 14:34 | Report abuse | Reply
  8. i rock

    Hey every one check out my blog on the voices in my head

    June 9, 2011 at 15:05 | Report abuse | Reply
  9. Miyuki

    Ultimately you can either have a system where everyone is guaranteed care and everyone is forced to pay or a system where only those who can pay are allowed to get care. A system were you don't pay for the services you receive is doomed to fail.

    June 9, 2011 at 17:24 | Report abuse | Reply
  10. Peter Koedyk

    It's in line with a capitalist society, who can afford healtcare gets healthcare, who can't afford it will have to go without. I believe in healthcare for all, but this country is not interested in that, so you get what you deserve. Black or white, all or nothing, poor or rich, that's it in a nutshell.

    June 9, 2011 at 21:52 | Report abuse | Reply
  11. TJeff1776

    "You need auto insurance ONLY if you intend to drive on a public road". Sheeeeesh......these uniformed conservative are too numerous to count. OR are they simply attempting to BS us. Sure....IF you remain on your own property, then no insurance is needed. BUT who tha hell wants to be confined to his/her own property. Here in Georgia there are periodical road blocks and NOBODY gets through w/o valid insurance coverage. I mean they will tow your vehicle away.
    Another thing, I see nothing wrong with Obamacare. The insurance and healthcare industry is fighting it and therefore the Republicans(industry lawyers) are too. Nor am I swayed by "so-called public polls"- a favorite conser instrument. We must remember that almost fifty(50) percent of the population go directly to the emergency room and receive FREE health
    care. Why should want a change ??? The middle class, who is shouldering these massive costs, are getting weaker and weaker with the ballooning healthcare costs. The ultimate climax to ALL of this is nationalizing the entire mess- there is just no other way around it. The Republicans, insurance, and health industry know this for a fact. They simply want to keep the ball bouncing and gouge the middle class for EVERYTHING they can get until the camel's back is finally broken.
    With the cost-of-living at zero and health premiums and other health costs rising 25%, and in California-50%.......how much longer can any rational person think this can last.

    June 9, 2011 at 22:16 | Report abuse | Reply
  12. Dan

    What about Life INsurance. If you die and have no insurance the State or County or someone has to pay for your funeral. Maybe everyone should be required to have Life Insurance. If you do die without the insurance then the Obama Government Plan could fine you. at least they would probable try. I guess the same goes if you go to the hospital really sick and die. How would Obama handle that-0h–Fine You anyway.

    June 9, 2011 at 22:19 | Report abuse | Reply
  13. Jeremy Engdahl-Johnson

    Tim Jost: "Most people don't understand the individual mandate" This video may help: http://www.healthcaretownhall.com/?p=3618

    June 9, 2011 at 22:26 | Report abuse | Reply
  14. Realist4U

    Anyone ever hear of the story called "1984"?...I don't believe there is a prequel, but it would probably start with something like mandatory insurance...

    June 9, 2011 at 22:31 | Report abuse | Reply
  15. Realist4U

    my other question is: what is the penalty for not purchasing insurance?

    June 9, 2011 at 22:34 | Report abuse | Reply
  16. TJeff1776

    DAN....to be perfectly honest....I see nothing wrong in requiring car, health, and/or life insurance. After all, why should you and I be literally required, via of tax monies, to pay for anyone's funeral outside of our own family. But....I try not to kid myself......funerals and healthcare is two different worries. A pauper's funeral is around $ 2,000. That by no means compares with even one hospital stay. I recently received an $ 18,0000 invoice from a hospital for a 4 hour outpatient
    visit. I understand the principle conveyed in comparing life insurance with Obama's health insurance. BUT we are comparing an elephant concern with a mouse worry. In order to spread health costs around.......EVERY country on the
    earth has had to nationize the darn program. This thing of "doctor visit long lines" and "hospital waiting lines" has been
    refuted as U. S. health industry propaganda.........hey, call any Canadian citizen or organization....and try to convince them of
    superior U. S. over Canada healthcare differences.

    June 9, 2011 at 23:14 | Report abuse | Reply
  17. tommy

    If Obama's plan is such a wonderful thing... then why so many Exemptions ...... especially for Democratic type $$ supporters .. and why no Mandate for EVERYONE including Congress and the stupid azz President himself?

    June 10, 2011 at 06:14 | Report abuse | Reply
  18. Bitsey

    Health care is not a product.

    June 10, 2011 at 09:33 | Report abuse | Reply
  19. Mike

    I'm amazed that the argument shifted from "coverage for 30 million more people" to "spread the costs around to more people." First, EVERYONE in the US–including those here illegally–have health care. Emergency Rooms handle all kinds of care every day for lots of people without insurance and without funds. So covering more people is a ridiculous argument. Everyone already has coverage.

    So spreading the costs around is the REAL agenda. And look at the process to do it. Federal government requires us to send money to it or to an insurance company, then it divvies up the spoils to where bureaucrats think is best. Government panels decide what is covered and what is not. Now think–what does this process remind us of?

    Oh, yes, communist society also called socialism. Centrally planned activities (farming, health care, auto production, EVERY activity within the society) and strong central government forcing compliance. People, this country was formed to throw off exactly that kind of government. King George was exactly that central government, and his edicts were the compliance the colonies resisted. What was once the bastion of individual responsibility and freedom has evolved in 235 years–most rapidly in the past 98 years–into what our forebears rebelled against.

    Wake up. Take personal responsibility back from Washington. Decry the power grabs of every administration since Teddy Roosevelt, republican and democrat alike. More of us must vote in every election, and we must vote out every sitting elected official in the federal system. Every single one.

    Clean House. Clean Senate. Clean administration. Let's start with the next election. And let's rid ourselves of the look-alike Dems and Reps. Let's get some independents, libertarians, greens in there.

    June 12, 2011 at 02:26 | Report abuse | Reply
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