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Health Insurance & Affordable Care Act

Supreme Court, Day 3: Can the Mandate Be Cut Out?

A Key Question Tackled on Third Day of the Health Care Hearings

Government Says Most of Law Does Not Affect States, NFIB

To convince the high court that the mandate and the law are “inextricably bound,” Clement today cited the government’s own argument that the law’s dramatic health insurance reforms hinge on everyone obtaining coverage. Without the mandate, the government contends, it would be counterproductive to require private health insurance companies to guarantee coverage to everyone.

The reason? Healthy Americans could wait until they were seriously ill before they applied for insurance, leaving private insurers in the meantime with a risk pool of sick and expensive individuals. This would force insurers to raise premiums to unaffordable levels, according to the government.

In response, Kneedler said today that the state officials and the NFIB are not impacted by most of the law’s provisions and therefore lack a good reason to get rid of all of it. Kneedler disagreed that Congress viewed the law as an all-or-nothing proposition. If the court declares the mandate unconstitutional, Kneedler said, it should only abolish guaranteed coverage, not the entire law.

‘Friend of Court’ Says Reforms Could Work Minus Mandate

Stepping into the legal ring today with the Obama administration and challengers to the law was attorney H. Bartow Farr III. The court appointed Farr as a “friend of the court” to argue that the rest of the law could stand if the mandate does not.

Invalidating the entire law, Farr said today, “is an example of the best driving out the good.”

Even without the mandate, the law “would still open the insurance market to millions of people and lower premiums for millions,” said Farr.

Medicaid Arguments

The court also listened to arguments about the law's stance on expanding Medicaid at the state level.

Although administered by the states, Medicaid is funded with both state and federal dollars, with Uncle Sam kicking in about two-thirds of the total. Clement said today that the federal government is using the states’ dependence on those federal dollars to coerce them into Medicaid expansion, with little controls over what benefits they offer.

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