COURT

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“The states say this is a unique sit­u­a­tion, it doesn’t ap­ply any­where else,” said Ti­mothy S. Jost, a pro­fes­sor at Wash­ing­ton and Lee Univer­sity School of Law. “Well, that’s ex­actly the same ar­gu­ment the fed­eral govern­ment is mak­ing to the min­i­mum-cov­er­age ar­gu­ment. I think both sides have their lim­it­ing-prin­ci­ple prob­lem.”

Lim­its of man­dates

The crux of the chal­lenge to the health care law fo­cuses on the in­di­vid­ual man­date, which re­quires ev­ery Amer­i­can to have health in­sur­ance or face a stiff tax penalty de­signed to cover the costs for be­ing unin­sured. The govern­ment ar­gues that Congress has long had the au­thor­ity to reg­u­late health in­sur­ance un­der the in­ter­state com­merce clause of the Con­sti­tu­tion, and forc­ing par­tic­i­pa­tion is just a way of bol­ster­ing that mar­ket.

The plain­tiffs charge that the man­date doesn’t reg­u­late ex­ist­ing com­merce. In­stead, they say, it vi­o­lates in­di­vid­ual lib­erty by forc­ing peo­ple to en­gage in com­merce in the first place by re­quir­ing them to pur­chase in­sur­ance they may not want or need. If the govern­ment can or­der cit­i­zens to buy health in­sur­ance, the ar­gu­ment goes, what is to stop Wash­ing­ton from man­dat­ing other health­ful ac­tiv­i­ties such as buy­ing broc­coli or sign­ing up for a gym mem­ber­ship?

Judge Lau­rence H. Sil­ber­man of the U.S. Court of Ap­peals for the D.C. Cir­cuit posed that very ques­tion last fall, ask­ing the ad­min­is­tra­tion’s at­tor­neys whether it would be un­con­sti­tu­tional for the govern­ment to re­quire Amer­i­cans to buy broc­coli. The at­tor­neys said no, but added that “it de­pends.” The court ul­ti­mately up­held the law.

In ar­gu­ments to the Supreme Court, the ad­min­is­tra­tion’s at­tor­neys have raised their own ques­tions about the scope of the claims by lead­ing op­po­nents of the law, who in­clude a ma­jor­ity of states and the Na­tional Fed­er­a­tion of In­de­pen­dent Busi­ness, the coun­try’s top small-busi­ness lobby.

The fed­eral law would dra­mat­i­cally ex­pand cov­er­age un­der Med­i­caid — the pub­lic health pro­gram for the poor, which is funded by fed­eral and state govern­ments. States have filed law­suits ar­gu­ing that they should be al­lowed to opt out of new re­quire­ments. The fed­eral govern­ment can’t or­der the states to com­ply, but it can con­di­tion the ac­cep­tance of vi­tal fed­eral money by the states on ad­her­ence to the strings at­tached to the money.

The Obama ad­min­is­tra­tion ar­gues that if states can opt out of th­ese re­quire­ments, there is no telling what other fed­eral fund­ing rules they will ig­nore.

At­tor­neys on both sides have lined up Supreme Court de­ci­sions to bol­ster their ar­gu­ments. The ad­min­is­tra­tion has pointed to the 1942 case Wickard v. Fil­burn, in which the court said the govern­ment has the power to reg­u­late farm­ers grow­ing wheat purely for pri­vate con­sump­tion, on the the­ory that wheat is traded na­tion­ally.

Also in the 2005 case Gon­za­les v. Raich, the court said Congress may crim­i­nal­ize home-grown mar­i­juana even if states have ap­proved it for medic­i­nal pur­poses.

But in two other ma­jor cases, the court has in­ter­preted the in­ter­state com­merce pow­ers more nar­rowly. In U.S. v. Lopez, it re­jected the govern­ment’s ar­gu­ment that car­ry­ing a gun in a school zone qual­i­fied as “in­ter­state com­merce.” In U.S. v. Mor­ri­son, the court said gen­der-mo­ti­vated vi­o­lence isn’t sub­ject to reg­u­la­tion un­der the com­merce clause.

The bot­tom line, op­po­nents say, is that un­til Mr. Obama’s health care overhaul was en­acted, the govern­ment never re­quired Amer­i­cans to pur­chase a com­mer­cial prod­uct from a third party — and the court would be ven­tur­ing into new ter­ri­tory if it gave the Obama ad­min­is­tra­tion the go-ahead.

“As a gen­eral rule, you have a much harder row to hoe if you’re try­ing to get the court to do some­thing new,” said Robert Alt, a se­nior le­gal fel­low

at the Her­itage Foun­da­tion.

Fi­nan­cial strings

On the Med­i­caid chal­lenge, the states also have ar­gued that the govern­ment is try­ing to do some­thing it hasn’t done be­fore — in de­gree if not in kind.

They say the ex­pan­sion de­manded is so mas­sive — re­quir­ing states to cover res­i­dents mak­ing up to 133 per­cent of the fed­eral poverty level in their pro­grams — and in­volves so much fed­eral money that even though in­di­vid­ual states can tech­ni­cally opt out of the pro­gram al­to­gether and turn down Wash­ing­ton’s money, it would be po­lit­i­cally sui­ci­dal to do so.

“There are mul­ti­ple states that re­ceive more than $1 bil­lion in fund­ing,” Mr. Alt said. “You can’t just opt out.”

The ad­min­is­tra­tion and sup­port­ers said that al­low­ing states to re­ject the Med­i­caid rules could per­ma­nently al­ter their re­la­tion­ship with the fed­eral govern­ment and would threaten to dis­man­tle fed­eral-state pro­grams in ar­eas such as ed­u­ca­tion, child wel­fare, high­way safety and dis­crim­i­na­tion.

When Congress, for in­stance, de­cided to raise the na­tional drink­ing age to 21, it told states with lower drink­ing ages that they would get fewer fed­eral high­way dol­lars unless and un­til they “vol­un­tar­ily” changed their laws.

“This would up­set the na­ture of our fed­eral govern­ment far more than if they de­cided the man­date is un­con­sti­tu­tional,” Mr. Jost said. “There goes dozens and dozens and dozens of fed­eral pro­grams, and it would have a rad­i­cal ef­fect on the na­ture of fed­er­al­ism in the U.S.”

Each side is punc­tu­at­ing its ar­gu­ments with charges that the other side can’t find a lim­it­ing prin­ci­ple.

Randy E. Bar­nett, a Ge­orge­town law pro­fes­sor who is help­ing the Na­tional Fed­er­a­tion of In­de­pen­dent Busi­ness, pointed to a 1987 case in which the Supreme Court said the fed­eral govern­ment can at­tach strings to fed­eral dol­lars — but ac­knowl­edged that there is a point at which the fi­nan­cial in­duce­ments can be­come co­er­cive.

“Whereas the govern­ment has of­fered no lim­it­ing prin­ci­ple what­so­ever to its claim of power un­der the com­merce clause, the Supreme Court it­self in South Dakota v. Dole of­fered the distinc­tion be­tween in­cen­tives and co­er­cion,” Mr. Bar­nett said.

Ian Mill­hiser, a pol­icy an­a­lyst for the Cen­ter for Amer­i­can Progress, said it’s “just silly” to call the Med­i­caid ex­pan­sion co­er­cive. That has never been a rea­son for the Supreme Court to strike down a fed­eral spend­ing pro­gram, he said.

On the in­di­vid­ual man­date, he said, it’s a “red her­ring” for op­po­nents to sug­gest that it would de­stroy lim­its on fed­eral au­thor­ity.

“There are many, many laws that can­not be en­acted un­der Congress’ abil­ity to reg­u­late com­merce,” he said. “Non-eco­nomic laws such as a fed­eral mur­der law, a fed­eral rape law, a fed­eral as­sault law, a fed­eral child-ne­glect statute, a fed­eral anti-tru­ancy law or a fed­eral law reg­u­lat­ing sex­ual moral­ity all ex­ceed Congress’ au­thor­ity un­der its enu­mer­ated con­sti­tu­tional pow­ers.”

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