A top U.S. Justice Department lawyer today defended the Obama administration's health care law, saying the minimum coverage provision of the Affordable Care Act is within the power of Congress.
The attorney, Beth Brinkmann, who leads the Civil Division’s appellate team, told a three-judge panel in Washington that the law, under attack in courts around the country, is a valid exercise of congressional authority.
Brinkmann noted several times the “crisis” in the health care market and said the law regulates the financing of a unique industry.
U.S. District Judge Gladys Kessler upheld the law in a ruling earlier this year. Kessler rejected critics’ claim that the minimum coverage provision regulates “inactivity.” The plaintiffs, represented by the American Center for Law and Justice, took the dispute to the D.C. Circuit for review.
More than 150 spectators gathered in the ceremonial courtroom of the E. Barrett Prettyman U.S. Courthouse in downtown Washington to hear the argument, which lasted two hours.
Judge Brett Kavanaugh and Senior Judge Laurence Silberman explored with Brinkmann whether the government has any limiting principle—that is, a restriction on how far Congress can go to require a purchase.
Kavanaugh, for instance, questioned whether a mandate to start a retirement account is unconstitutional. In 220 years, the judge said, Congress never once has mandated any purchase.
Brinkmann hesitated at the judges’ hypothetical scenarios, saying she would need more evidence before announcing any particular proposed mandate unconstitutional.
Kavanaugh said that if the Justice Department’s position is upheld, there could be a case a decade from now saying that since the health care mandate passed legal muster, so too should another government mandate.
“I can see it coming,” Kavanaugh said. He later said he is “dubious” that the government can cabin off health insurance from other potential government mandates down the road.
The judge questioned whether the health care legislation and its individual mandate marked a “sea change in Congressional power.” Forcing a person to pay a tax penalty for going without health care coverage, he said, is “100% constitutional." That was the substance of the House of Representatives version of the bill, the judge noted.
Edward White III argued for the plaintiffs, a group that includes a man who believes in faith healing and who does not have health insurance.
White said Congress at most could have offered incentives for people to buy health care insurance. A mandate, he said, is unconstitutional.
Silberman, sitting with Kavanaugh and Senior Judge Harry Edwards, said nothing in the Constitution’s text favors the plaintiffs’ position.
Regulation, he said, can mean a requirement or a prohibition. “I don’t see anything in the Constitution that supports you,” Silberman said to White.
The appeals court did not immediately rule today on the dispute.