Until just days ago, it was hardly clear that the Obama administration would agree with the states on the need for prompt review, as there were good political reasons for moving slowly. The court’s decision is now most likely to come just months before the 2012 presidential election.
Their briefs also reflect agreement on matters of substance. The two sides, along with the judges in the majority in the appeals court decision most likely to be reviewed by the justices, all said the dispute is about means rather than ends. There are other ways, they said, for Congress to achieve near-universal health coverage, some of them more expansive than what was enacted.
“Both sides agree that Congress has the constitutional power to enact a national health care system that raised taxes to support a single government agency that pays all medical bills, just like Medicare,” said Walter Dellinger, who served as acting solicitor general in the administration of President Bill Clinton and supports the law.
Randy E. Barnett, a lawyer for some of the plaintiffs who on Wednesday sought Supreme Court review, made essentially the same point. “What I’ve said from Day 1,” he said, “is that if Medicare is constitutional then Medicare-for-everyone is constitutional.”
Mr. Dellinger said there was irony in this harmony. “The constitutional attack is focused on a mandate that was necessary if the new system was to utilize the existing private market, which had traditionally been a conservative and Republican proposal for how to deal with health care,” he said.
To be sure, the two sides dispute whether Congress has the power under the Constitution’s commerce clause to require people to buy insurance through what the federal government calls a minimum coverage provision and the plaintiffs call an individual mandate. But they agree that Congress could have achieved much the same thing through a slightly different mechanism, as Judge Stanley Marcus wrote in his dissent from the 2-to-1 decision issued in August by a panel of the United States Court of Appeals for the 11th Circuit, in Atlanta.
“The plaintiffs and, indeed, the majority have conceded, as they must, that Congress has the commerce power to impose precisely the same mandate compelling the same class of uninsured individuals to obtain the same kind of insurance, or otherwise pay a penalty, as a necessary condition to receiving health care services, at the time the uninsured seek these services,” Judge Marcus wrote.
Judge Jeffrey S. Sutton, one judge on the United States Court of Appeals for the Sixth Circuit in the majority in a 2-to-1 decision in June upholding the law, said the difference between the concededly proper approach and the disputed one was not enough to strike down a major piece of legislation.
“Requiring insurance today and requiring it at a future point of sale amount to policy differences in degree, not kind, and not the sort of policy differences removed from the political branches,” Judge Sutton wrote.
Other judges have acknowledged the distinction but found it legally significant.
“Congress cannot require individuals who choose not to purchase health insurance or individuals who are not currently seeking or receiving services in the health care market to purchase health insurance in order to stabilize the health insurance market,” Judge Christopher C. Conner of Federal District Court in Harrisburg, Pa., wrote this month. “Congress cannot mandate or regulate in anticipation of conduct that may or may not occur in the future.”
The decision of the 11th Circuit is the one most likely to be reviewed by the Supreme Court, if only because it is the one that involves 26 states. It also helps that Solicitor General Donald B. Verrilli Jr. on Wednesday urged the justices to grant a review of that decision rather than the one from the Sixth Circuit. It does not hurt, either, that the states are represented by Paul D. Clement, who served as solicitor general in the administration of President George W. Bush.
Mr. Verrilli and Mr. Clement appear to have areas of agreement about what should follow if the Supreme Court strikes down the requirement to purchase insurance. Both sides have questioned whether the court can surgically remove the heart of the current law without also killing parts of the rest of it.
The 11th Circuit majority, on the other hand, left in place every part of the law except the requirement to purchase insurance, even as it noted that Congress had found the requirement essential to the operation of two other provisions — one forbidding insurers to turn away applicants, the other barring them from taking account of pre-existing conditions.
Lawyers for the federal government have called the three provisions “absolutely intertwined.” In his brief filed Wednesday, Mr. Clement wrote that the 11th Circuit’s decision “erroneously leaves the entire act in place — even provisions that the federal government concedes cannot be divorced from the mandate — notwithstanding compelling evidence that Congress intended the mandate to function as the act’s essential lynchpin and would never have passed the act without it.”
There is agreement on some broader points, too, including that the law, the Affordable Care Act, is one of unusual sweep, ambition and complexity.
In his brief for the administration, Mr. Verrilli said the law was “a comprehensive program of economic regulation and tax measures.”
Mr. Clement said much the same thing, but more vigorously. The law, he wrote, “is a massive collection of sweeping changes that impose substantial new federal obligations on every corner of society and compel financial action from nearly every citizen of the United States.”
The two sides have a final point in common. Each seems quite confident
that it will win in the Supreme Court.