Thursday, May 10, 2012

Misrepresentation of the mandate in the Supreme Court: why it still matters

I have made the case below piecemeal, across many posts. This is an attempt to make it as succinctly and completely as possible.
In his oral argument against the constitutionality of the ACA's individual mandate on March 27, plaintiff's counsel Michael Carvin asserted, "Congress prohibits anyone over 30 from buying any kind of catastrophic health insurance" (p. 105).

That is not true -- the ACA provides the catastrophic coverage option for others exempt from the mandate, e.g. on grounds of financial hardship. And that factual error signals a greater distortion, one that was not countered and apparently made a major impression on Justices Alito, Roberts and Scalia: that the mandate forces Americans to buy coverage greatly in excess of what's required to offset the cost of catastrophic care for those lacking health insurance. No one pointed out that a) the ACA provides a catastrophic coverage option for those under 30; b) that it extends that option to others exempt from the mandate on financial or other grounds; or c) that the bronze plans offered in the exchanges, as the Kaiser Family Foundation recently detailed, might also reasonably be labeled "catastrophic" coverage.

It seems to me that a) the justices were misled on this potentially crucial point, and b) Kennedy and/or another might still be convinced, if not to accept the mandate as constructed, to divide the baby by further limiting it -- as Marty Lederman suggested they might:

Moreover, even if Randy and Mike Carvin were correct, and the preventive care coverage could not be justified under my proposed, or any other, limited holding, that would only mean that the Court should declare invalid those subsections of section 18022(b) that go beyond coverage for catastrophic care and other services that are government-guaranteed. Such an excision would likely have, at most, only a marginal impact on the cost of insurance premiums, since it is of course catastrophic and longterm care--the services the state and federal governments guarantee--that account for the lion's share of uncompensated health care costs, and of the cost of health insurance (my emphasis).
When I first noted that Michael Carvin misrepresented the availability of catastrophic coverage in the ACA oral argument, a healthcare attorney* left a comment suggesting this course: 

Supreme Court Rule 25, Paragraph 7 provides:

After a case has been argued or submitted, the Clerk will not file any brief, except that of a party filed by leave of the Court.

By implication, the Court will not object to a party filing a Request for Leave To File a Special Supplemental Brief. The request, within its own body, would state the urgent matter at hand and why that matter requires further briefing.

Here, the availability of catastrophic coverage under the ACA:

(a) emerged for the first time at oral argument;

(b) was not briefed to the Court by either party or any of the amici;

(c) appears to have been misapprehended by one or more members of the Court;

(d) was misstated to the Court during oral argument Court by counsel for one of the parties; and

(e) supports the position advanced by a different party.

In most courts, it would not be considered a breach of etiquette for the Request for Leave to file a brief to include, as an appendix, the brief itself. In this case, an extremely short brief. I can almost imagine it being done in a sentence or two, although the brief with all the required formalities might run to ten pages or so.

Attaching the brief itself, however, would hardly be necessary. Recitation of the five bullet points (a)-(e) alone in the Request for Leave would likely put the focus of at least one clerk in at least one Justice's chambers exactly where it needs to be.

One way or another, It seems to me worthwhile to try to reach Justice Kennedy and/or one of his colleagues with a two-track argument: 1) the mandate is properly 'minimized'; Congress exercised what you might call a self-limiting principle; and 2) if you don't think it is sufficiently minimized, limit it further without killing it.

In purely legal terms, the extent of coverage "mandated" by the ACA's minimum coverage provision may seem a sidelight. The 3/27 oral argument, however, centered largely on a morality tale spun by the plaintiffs. In this tale, the main characters were hoards of healthy young adults being forced to buy more coverage than they need in order to subsidize the coverage of older adults.  The key verbs, deployed relentlessly in the plaintiffs' briefs and testimony, were force, conscript, compel, and commandeer.  Free, strong, savvy young Americans were being robbed of their ability to assess risk, drive bargains, and buy precisely the amount of risk transfer that their robust condition required. The ACA is structured "to compel the uninsured into engaging in economic activity that is harmful for them" (Carvin brief, p. 1). Several of the justices appear to have swallowed it hook line and sinker. Alito, Roberts and Scalia buzz-sawed Solicitor General Donald Verrilli with serial restatements of it.

Countering these myths, an amicus brief filed by a coalition of youth organizations calling themselves the Young Invincibles is especially germane. Citing a range of reliable sources, the brief documents that young people overwhelmingly want health insurance; that they are disproportionately uninsured and underinsured; that their lack of health insurance causes them bodily and and economic harm; and that the ACA makes insurance affordable, not unaffordable or unduly expensive, for them. I've posted a precis of the key points here.

If the minimum coverage provision in the ACA is self-limiting in the extent of the burden it imposes on individuals, it is also self-limiting in the mandate imposed on the states. In his reply brief on the mandate question, Solicitor General Verrilli points out that a) no one (including the plaintiffs) questions states' right to impose an individual mandate; b) the "authority of the federal government over interstate commerce does not differ in extent or character from that retained by the states over intrastate commerce"; and c) the states can in any case "opt out of the minimum coverage provision if they establish an alternative means of affordably providing comprehensive coverage to a comparable number of residents" (as of 2017, but Obama has proposed moving the waiver up to 2014).  More on that argument here.

Further reading

External links
Patient cost-sharing under the Affordable Care Act (Kaiser Family Foundation. 4/27)
Will the justices make a catastrophic error? (Jonathan Cohn, 4/19)
Policy ignorance at the Supreme Court (Steve Benen, Maddow blog, 4/16)
Supreme Court misunderstanding on health overhaul? (AP's Ricardo Alonso-Salvidar, 4/10)
The bounded, minimalist way to uphold the ACA (Marty Lederman at Balkinization, 4/2) 
Ragbatz on the catastrophic coverage options in the ACA - a healthcare attorney picks up the plaintiff's con in real time ( 3/28)

xpostfactoid on catastrophic coverage
A postscript about the ACA's Basic Health Plan option for states (8/13)
On the mandate more broadly
The individual mandate is a piece of Cake (4/25)
Verrilli's limiting principles (4/24)
If only Verrilli had said (A, B, C) (3/31)
Verrilli, slapped silly, recovers willy-nilly (3/28)

* The commenter cited is co-author of the Ragbatz tumblr, which has a 3/28 post highlighting the catastrophic nature of the bronze plans.

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