Van Hollen: Health care law in jeopardy before the U.S. Supreme Court

At some point later this month, the earth could move when the U.S. Supreme Court rules on the constitutionality of the individual mandate of the Affordable Care Act, and by extension on the ACA itself. After the tone and direction of oral arguments appeared to indicate the justices are skeptical about the individual mandate, which would expand the federal government’s powers under the Commerce Clause, there is real concern in the White House that some adjustments will have to be made in 2013.

John Byron “J.B.” Van Hollen, attorney general for state of Wisconsin, was one of 26 state attorneys general that challenged the law’s individual mandate, which requires everyone to buy medical insurance. In this “Take Five” interview with IB, he spells out the reasons why he thinks the smart money is on the challengers.

IB: Do you have any thoughts, based on the Supreme Court’s oral arguments, where this multi-state case is going to go?

Van Hollen: I actually feel pretty good about it. I’ve learned over the course of my legal career that you should never predict the result of a court case until you actually get the real results. Obviously, you can have a rock-solid case and have jurors or a judge go in a direction that you never expected. Similarly, you should not base an opinion on what the U.S. Supreme Court is going to do on the direction of the questioning by those justices. However, I think every attorney general that was present at those oral arguments would tell you that when they walked out of the oral arguments, they felt a lot better about the state’s prognosis of success than when they walked in.

I felt fairly confident before I got there that we had a better-than-average chance at prevailing based upon case law and my reading of it, and my knowledge of the justices on the court and what their philosophies are on legal jurisprudence. I felt even better after I sat through the oral arguments because the justices who many people consider to be swing justices were very pointed in their questions toward the federal government’s attorneys and seemed very skeptical about the legitimacy of this law with regard to not just the individual mandate, but with regard to severability and the Medicaid aspects as well.

IB: If the individual mandate is struck down, is it your opinion that the entire law is invalid and the entire law will be struck down as well?

Van Hollen: I think the individual mandate will be struck down. For the court to allow that to stand would be an expansion of the United States Commerce Clause far beyond anything the courts have allowed the president or Congress to do in the past. It is arguable that if the individual mandate is struck down as being unconstitutional that the court can find that is severable and let the rest of the law stand, but almost everybody argues on both sides, and everywhere in between, that the law is based largely upon the individual mandate and that it can’t really function without it. So from a functionality standpoint, the law will be dead whether the Supreme Court throws out the whole law or just the individual mandate.

I believe, based upon the court’s view of activism, that they believe it would be less judicially active for them to throw the whole law out. If they throw out just part of it, they are leaving a law that nobody intended to exist, and they believe that will be activism in and of itself – to completely create a law out of whole cloth and throwing out just part of it.

IB: If the law is struck down in its entirety, what does this mean for the business community? Companies have been prepping for full implementation for two years.

Van Hollen: I think it’s a tremendous thing for the business community. The reality is that the federal government, with this health care law, and part of the reason why it’s legally problematic, has been trying to pass a law that allows or requires everyone to be insured, but they have been putting most of the onus for that on the states, and on individual consumers, and on business interests. There are many states, individual consumers, and business interests, especially during a tough financial climate such as the one we’re in, that do not have the ability to comply with this law and survive. The reality is that if we provide more freedom and flexibility for individuals and businesses and states to try to provide a better health care system and better health care coverage for individuals, something that is not the one-size-fits-all mandate that comes from the federal government, we’re all going to be better off.

IB: My understanding is that it does not have a severability clause in the law.

Van Hollen: Correct. Generally speaking, if there was a discussion about putting a severability clause in, yet one wasn’t included, it’s assumed that it was left out because they do not want a portion of the bill to be severed and have the rest survive. I don’t think it’s safe to assume that when Congress acts, it acts with that thorough of an analysis. There is pretty good evidence that an awful lot of things contained in this law were added in to secure the votes for passage. It could potentially be that one individual that needed to vote objected to a severability clause and the others really didn’t care that much. The rationale of why it’s there and why it’s not is really hard to track. It’s largely because of that that courts don’t necessarily follow where there is a severability clause or not.

IB: So it wouldn’t make a difference if it were in there or not, especially if the court rules the individual mandate is unconstitutional.

Van Hollen: Correct. If they find that a portion of the law is unconstitutional, they will throw at least that portion out no matter what. With regard to severability, they will certainly give deference to the legislature and the executive branch if it was clear that they wanted that part severed out or not. Once again, by just severing out part and not all of it, they are being less judicially active because the legislative body has said they would like it severed out and the rest left intact. By virtue of it not being clear or by virtue of there not being a severability clause in no way restrains them from throwing the entire law out.

IB: Is it your understanding based on your knowledge of single-payer systems that a single-payer law would pass constitutional muster because it would involve Congress’ authority to levy taxes and spend funds?

Van Hollen: More than anything, it doesn’t boil down to the nature of the plan. It boils down to what Congress has the lawful authority to do. For instance, in this case, they could very well have passed a plan such as the Social Security plan, which still provides for just about everything that this health care program provides for but did so in the form of a tax, and said ‘we’re going to tax individuals, much like we do under Social Security, and we’re going to use that to fund the program,’ versus saying it was done under the Commerce Clause, where we can force you to do this based upon interstate commerce. So it’s not necessarily the plan but the methodology that was the problem.

Just about any potential health care plan the federal government would want to pass could be constitutional or unconstitutional, depending on how they structure it and how they justify its existence. More than anything, what the states are trying to do here, and something we’ve tried to make clear during the course of this litigation, is stress that this isn’t litigation over health care and the legitimacy of federal or state health care plans or changing the system or insurability. This is a case over the power of the federal government to regulate our lives and what powers are reserved for states and local government to regulate our lives and big government not getting too big and thinking they can do anything they want.

That’s really what this boils down to is the ability to have some level of local control, and to make sure the government is tamped down and held in its place.

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