Health Law Challenge Gets A Dry Run At Georgetown Law

If a healthy, wealthy young man lives in a hut out in the American wilderness, should he have to buy health insurance?

That was one of many questions brought up Wednesday, when the Georgetown University law school held a mock version of the upcoming oral arguments for the Supreme Court’s consideration of the 2010 health law. A group of experienced lawyers argued the constitutionality of the law’s individual mandate in an afternoon of legal theater. The “moot court” aired debate points and gave a stuffy auditorium full of law students – many on the edge of their seat – a peek at the legal fireworks set for this March.

As part of the format, the six “justices” who heard the case didn’t make a decision, but the event did show a plausible scenario for how the opening statements might unfold: Grandiose statements about the need for citizens to pay into the health care system versus themes of individual liberty and economic freedom.

But when the justices began their questioning, the face-off turned into a series of hypotheticals designed to test how far Congress should be able to go in terms of requiring Americans to buy a product – in this case, health insurance. At times the hypotheticals – everything from requiring people to buy chocolate ice cream to requiring individuals to purchase a second car — became so frustrating that the lawyers turned red and took a step back to remind themselves they weren’t embroiled in a real-life courtroom drama.

Walter Dellinger, former acting solicitor general under President Bill Clinton, represented the Obama administration’s pro-mandate position. Dellinger has testified before the Senate Judiciary Committee in favor of the law’s constitutionality. He boiled his argument down to the inevitability that all individuals will at some point need health care, and he said the individual mandate is authorized under Congress’ constitutional power to regulate interstate commerce. Dellinger also pointed to the Constitution’s “necessary and proper” clause, arguing that the mandate is necessary to enable the health law’s ban on insurers’ denial of coverage because of a pre-existing condition.

Representing the law’s opponents, Steven Bradbury, a partner with Dechert LLP who filed an amicus brief against the severability of the mandate from the health law, said the mandate co-opts Americans’ economic freedom and “uses it as a tool to counter a market problem created by the act itself” with the pre-existing coverage provision. Bradbury added that “the mandate goes well beyond the bounds” of the necessary and proper clause, with an infringement of rights that forces individuals to enter and remain in the health care market.

While the justices didn’t make a decision, there was a question and answer period, and one law student asked the legal experts who were acting as “justices” what they thought about the case’s moving parts.

David Cole, a Georgetown professor, said that the “necessary and proper” argument was “extraordinarily strong,” while the opposition’s arguments “don’t seem to make much sense.” But Seth Waxman, a solicitor general under Clinton, said the administration will be challenged by the mandate’s “complete absence of a pedigree.”

One justice spoke for the rest of the panel and said, “We don’t really think anything,” generating one of a few moments of laughter during an otherwise tense afternoon.