Constitutionality of health care reform mandate debated at Dole Institute event

A one-sentence question was posed by Dole Institute of Politics Associate Director Barbara Ballard: Is the federal government’s 2014 insurance mandate under the new health care law constitutional?

One attorney on each side tried to make it simple. But it’s complicated.

“What doesn’t seem to fall into the rubric of regulating commerce is forcing people into commerce so that the government can regulate them,” said Gregory Katsas, a litigation partner at the Washington firm of Jones Day, who is involved in one challenge to the federal health care law on behalf of a national small-business group.

But Catherine Stetson, a partner and director of appellate practice at another Washington firm, Hogan Lovells, had members of the audience raise their hands if they’d ever had to unexpectedly go to the doctor or the emergency room.

“There is another market that all of us are in or will be in whether we want to be or not,” she said, “and that’s the health care market.”

Stetson argued that’s what Congress was trying to accomplish by passing the law in 2010 and including the mandate that requires every individual to purchase insurance by 2014 or pay a penalty. It’s crucial because it costs the health care industry and hospitals billions of dollars in uncompensated care to uninsured patients, she said.

Both attorneys told moderator Steve McAllister, a Kansas University law professor, that they believed the U.S. Supreme Court would decide the issue by June. An 11th Circuit Court of Appeals panel ruled this year that Congress exceeded its authority by requiring Americans to buy coverage.

Katsas, who was involved in that case, argued the health insurance market was not unlike the selling of any other products “whether it be broccoli or General Motors cars or Citibank mortgages.”

But Stetson said her side was talking about financing a risk.

“You do not drive a General Motors car off the lot and tell the dealer just to bill your neighbor or to take the cost of the car on yourself,” she said. “That’s what Congress has concluded has happened every single day to the tune of billions of dollars in the health care economy.”

The debate was part of Constitution Day programming at KU.

As the country awaits the Supreme Court’s expected handling of at least one of the legal challenges that has worked its way through the appellate court system, Stetson predicted that for how divisive the issue was before Congress, the justices won’t split 5 to 4 on party lines, but instead uphold the mandate 7 to 2, with Justice Clarence Thomas and one other justice yet to be determined dissenting.

Katsas didn’t make a prediction based on his involvement in the 11th Circuit case, but he said the Supreme Court will be breaking new ground either way.

“I think both sides have a pretty good fighting chance,” he said. “And I think I’ll just leave it at that.”

By George Diepenbrock


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