Sunday, March 4, 2012

The case for Obamacare as a plot to up car sales

WASHINGTON — An attorney challenging President Barack Obama's landmark healthcare law before the U.S. Supreme Court said on Thursday that Congress could require Americans to buy a car or other product if people were compelled to obtain medical insurance.

But a former Obama administration attorney dismissed those concerns, calling them "absurd hypotheticals," and defended the insurance purchase requirement in the 2010 law as part of a comprehensive scheme to address a national problem of soaring healthcare costs.

At a briefing sponsored by SCOTUSblog, a web site that follows the Supreme Court, and Bloomberg Law, a unit of media giant Bloomberg, attorneys Paul Clement and Neal Katyal previewed the main arguments that will be made next month when the Supreme Court considers the healthcare challenge, which centers on the reach of Congress' power under the Constitution to regulate interstate commerce.

A decision, expected by the end of June, is likely to affect the presidential and congressional elections. Obama has championed the law as his signature domestic policy achievement while Republican presidential candidates oppose it and vow to repeal it.

Clement, a former solicitor general under President George W. Bush who is arguing for the 26 states challenging the law, said the Obama administration offered no limiting principles on what products Americans could be required to buy.

If the government can make people get insurance, he said that Congress instead of adopting the cash-for-clunkers auto buyback program could have required that everyone who exceeds a certain income level must buy a car to help the struggling U.S. auto industry.

"You just can't have the shortcut of the individual mandate," Clement said, referring to the provision the requires Americans buy medical insurance or pay a penalty by 2014.

He said there were other ways that would have been constitutional for Congress to make sure that uninsured Americans got coverage.

Katyal, a former Obama administration acting solicitor general, said the individual mandate was one part of a comprehensive reform to address a national crisis of 50 million Americans without healthcare insurance.

Katyal said the law was a proper, constitutional way to avoid the uninsured getting healthcare services when they get sick, but not paying for it and thereby shifting the costs to others.

He rejected the hypotheticals. "Do you really want the federal courts to be adjudicating these questions based on absurd hypotheticals?" he asked.

The briefing was the latest in a series being held ahead of the healthcare arguments.

At a Washington Legal Foundation briefing last week, veteran Supreme Court attorney Carter Phillips gave his prediction.

"My gut feeling all along has been ... (that) ultimately the court is going to uphold the mandate," and will be satisfied Congress acted within its authority because of the impact on interstate commerce, he said.

The Supreme Court cases are National Federation of Independent Business v. Sebelius, No. 11-393; U.S. Department of Health and Human Services v. Florida, No. 11-398; and Florida v. Department of Health and Human Services, No. 11-400.

Copyright 2012 Thomson Reuters.

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