State AGs debate cases in upcoming Supreme Court review of ACA

A debate presented Feb. 9 at the National Press Club in Washington set the stage for opposing views expected next month when the Supreme Court begins consideration of the Affordable Care Act’s constitutionality. Virginia Attorney General Kenneth Cuccinelli presented the case that the law should be ruled unconstitutional, and Massachusetts Attorney General Martha Coakley presented what would likely be the government’s case for preserving ACA.

Coakley, who spoke first, contended that the Massachusetts health law (so-called Romney Care) is a prototype of what the federal bill does. She pointed out that Gov. Mitt Romney in 2006 stated that the bill was "not only constitutional but good public policy." She cited statistics indicating that 98 percent of Massachusetts residents now have health care access (15 percent higher than the national average), and that Massachusetts law reduces spending and emergency room care costs by over 30 percent.

Coakley said that approval of the mandate is "not even a close call" under the Commerce and "necessary and proper" provisions of the U.S. constitution.  She cited as precedent a 1942 case (Wickard v. Filburn), which involved regulation of the wheat market.

Cuccinelli argued, "The federal government cannot compel you into commerce or to buy a product."  He added, "If you are ordered to buy healthcare, you can be ordered to buy a car or a gym membership."  He contended that the "mandate requires a radical, dramatic expansion of the Commerce Clause."

During questions, Coakley pointed out that auto insurance is required, and precedent allows congressional action on healthcare. Cuccinelli responded that the difference between state and national requirements is significant.

The debaters also squared off on whether provisions of the bill already in place (e.g., children’s coverage through age 26, no denials of insurance coverage due to pre-existing conditions) can be severed if the overall mandate is ruled unconstitutional. Coakley asserted, "The courts so far have ruled that it is severable.  Congress will have to find a way to pay for them." Cuccinelli countered that if the provisions are severed, the government would also have to drop Medicaid expansion as a burden to the states.  Coakley responded that any Medicaid denial would be unprecedented. 

Both Coakley and Cuccinelli agreed that since the Court has always approved Medicaid, any denial now would have to be based on a "significant burden" and "coercion" to break precedent. Coakley said that would be an "uphill battle" to prove.

The attorneys general were also asked if "the politics of the court — the appointing power" rather than the merits of the policy would drive the decision.  Cuccinelli conceded that "it should not surprise anyone that judges and justices tend to be closer to the world view of the presidents that appoint them." Noneltheless, both Coakley and Cuccinelli agreed that in a "close case" this significant, the justices would rule on the merits.

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