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Analysis: Koster's brief argues both sides of health-care mandate

In Region

9:52 am on Tue, 04.12.11

Missouri Attorney General Chris Koster filed an unorthodox and highly nuanced legal brief in the lawsuit against the national health-care law. Filled with literary references to Walden Pond, it argued both sides of the legal issue.

At one point, Koster argued that Congress exceeded its previously recognized power under the Commerce Clause when it passed the mandate requiring everyone to buy health insurance.

At another point, Koster said that the court still might approve the health-care mandate under the Commerce Clause, if it made clear that health care was the only arena where Congress could go that far.

At still another point, Koster said that the health-care mandate might be constitutional under Congress' taxing power.

Despite the literary allusions and fancy legal footwork, legal experts were unimpressed by the friend-of-the-court brief filed this week in a Florida case before the 11th U.S. Circuit Court of Appeals.

"It appears that the attorney general is trying to split the baby with this amicus brief, hoping to satisfy those who demanded that he take a position against the Affordable Care Act's constitutionality while also signaling his support for the underlying policy," Dave Roland wrote in an email. He is director of litigation for the libertarian Freedom Center of Missouri.

"The brief begins by arguing (correctly, in my opinion) that in passing the law Congress went beyond even the expansive regulation condoned in previous U.S. Supreme Court decisions, overstepping its authority under the Commerce Clause. The last few pages of the brief, however, try to provide Congress with a roadmap that would allow it to overcome this deficiency and preserve the policies -- including the individual mandate!

"In short, the brief looks like an adept political maneuver, allowing the attorney general to claim to have opposed the Affordable Care Act while signaling to health-care law's supporters that he is really on their side."

Bruce La Pierre, a constitutional law expert at Washington University Law School described Koster's argument as "simplistic, to be kind."

The simple answer to the health-care law, wrote La Pierre in an email, is to "leave it all to the political process. If ACA (Patient Protection and Affordable Care Act) is really is so bad, then elect a Republican Senate in 2012 and repeal it. Why are political conservatives suddenly so enamored with judicial activism and striking down the results (the ACA) of the democratic political process?"

La Pierre deconstructed the literary device Koster used to begin his argument. Koster asked, "When Henry Thoreau set about to idly chronicle the summer of 1845 alongside Walden Pond, could Congress assert that Thoreau's season of reflection was, in fact, an active decision not to fish Walden's waters, regulate his negative decision under the Commerce Clause, and thereafter penalize his failure to fish under the theory that everyone has to eat?"

The point of the analogy is that Congress could no more penalize Thoreau's decision not to fish that it can penalize a person's decision not to buy health care.

La Pierre responded, "Yes, Congress could penalize Thoreau's decision not to fish -- but what is important is that Congress wouldn't do it (and if Congress did it, then you can vote the rascals out of office)."

Koster argued that the Supreme Court never has upheld as broad a reach of the Commerce power as the one required to uphold the health-care law. The court would have to go further even than it did during the New Deal. In the leading New Deal precedent, the court ruled that the government could order an Ohio farmer not to plant wheat for home consumption on half of his 23-acre plot of land. Even that small amount of wheat would affect the stream of commerce, the court ruled.

After arguing for many pages that the law exceeds the Commerce Clause, Koster switched field to suggest that the court could use the Commerce Clause to approve the health-care mandate if it only did it this once. "A bright-line exception could be constructed to aggressively limit this court's decision solely to the health-care arena," he writes.

Carving out this single arena could be supported because "the congressional regulation is in the area of health care in which nearly all individuals are certain to enter interstate commerce because of the need for medical treatment at some point in their life."

That was the reason that supporters of the law cite to show why the law was well within Congress' Commerce powers.

Koster had another suggestion for how the court might uphold the law. He argued that the law could be justified under Congress's power to tax, which is almost unlimited. He acknowledged that sponsors of the law said the penalty for violating the mandate was not a tax, but he pointed out that the mandate is part of the Internal Revenue Code, making it a tax provision.

Koster noted in the brief and in an accompanying letter that Missouri voters overwhelmingly approve Proposition C in 2010 barring enforcement of an individual health care mandate in the state.

But La Pierre pointed out that a Missouri law in conflict with a valid federal law must fall. "Missouri's law in conflict with ACA?" he wrote. "Yes, and if ACA is constitutional, then Missouri's law is invalid under the Supremacy Clause. It is preempted. Missouri's law is irrelevant to the determination of the validity of the ACA."

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. To reach him, contact Beacon issues and politics editor Susan Hegger.

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