It’s all About the Minimum Coverage Provision, at Least for this Panel of Experts

February 16, 2012

by Jeremy Leaming

During an early preview of forthcoming Supreme Court consideration of the landmark health care reform law, it was all about the law’s minimum coverage provision.

Even though the U.S. Supreme in late March will hear oral argument spanning three days and covering four constitutional issues arising from the Eleventh Circuit’s opinion striking the law, it was the minimum coverage provision that the panelists wrangled over, and sometimes heatedly so, or at least in animated fashion.

The event hosted by SCOTUSblog and BloombergLaw included former U.S. Solicitor General Paul Clement, representing the states’ challenges to the Affordable Care Act, Michael Carvin, a Jones Day partner representing the National Federal of Independent Business, also arguing against the health care law, and former U.S. Acting Solicitor General Neal Katyal (pictured) and Yale Law School Professor Akhil Reed Amar, arguing that the ACA should withstand the constitutional challenges.

Clement, who moderator Tom Goldstein heaped praise on – one of the greatest attorneys of his generation, or something to that effect -- repeated well-worn conservative talking points.

The ACA’s minimum coverage provision is unprecedented. (That provision takes effect in 2014, and requires those who can afford it to obtain minimum health insurance coverage or pay a penalty with their annual tax return. The minimum coverage provision had, until Obama decided to support it, backing of conservative politicians and activists. Congress determined the provision was crucial to its efforts to help millions more people become insured. Based on studies by the CBO, the minimum coverage provision is necessary to ensure that many of the nation’s uninsured will soon be covered.)

“There’s been a lot of other national crises over the years where Congress might have thought forcing individuals to purchase a particular good or particular service might be a useful means of government action, but the government never did it,” Clement said. “Just to take an example that has always resonated with me because it is so recent and seemed to me so obvious that a compelled purchase would have been an even more effective regulation; there was the famous cash for clunkers program involving a series of incentives to get people to help the car industry by giving them incentives to purchase cars.”

Katyal, however, countered that the efforts to reform America’s car industry and its troubled health care industry, where 50 million have essentially been priced out of the market, are not analogous. Congress set out to change the situation, by asking those who self-insure to start pitching in.

“The automobile industry really is different, that’s not a situation in which you can show up at the car lot, drive off with the car and stick your bill to your neighbor,” Katyal said. “That’s what’s going on in the health insurance market, that’s what Congress has found. That the uninsured are going into emergency rooms, and you and I are who are paying for health insurance are effectively paying for them, and that is an economic effect that is real and present right now.”

Although the high court has agreed to consider the constitutionality of the expansion of Medicaid for poor Americans, which none of the lower courts found unconstitutional, the issue was not touched upon in the discussion.

Amar, as is usual, provided compelling, accessible arguments in favor of the constitutionality of the minimum coverage provision. There’s court precedent that strongly supports Congress’s ability to regulate interstate commerce. Carvin provided the libertarian take -- Congress has exceeded its bounds, the president was dishonest in coming to support the minimum coverage provision, and if the law is upheld Congress will become effectively unlimited in its ability to regulate all parts of our lives.

Watch C-SPAN coverage here.