Health Law Challenge Gets A Dry Run At Georgetown Law

If a healthy, wealthy young man lives in a hut out in the American wilderness, should he have to buy health insurance?

That was one of many questions brought up Wednesday, when the Georgetown University law school held a mock version of the upcoming oral arguments for the of the 2010 health law. A group of experienced lawyers argued the constitutionality of the law鈥檚 individual mandate in an afternoon of legal theater. The 鈥溾 aired debate points and gave a stuffy auditorium full of law students 鈥 many on the edge of their seat 鈥 a peek at the legal fireworks set for this March.

As part of the format, the six 鈥渏ustices鈥 who heard the case didn鈥檛 make a decision, but the event did show a plausible scenario for how the opening statements might unfold: Grandiose statements about the need for citizens to pay into the health care system versus themes of individual liberty and economic freedom.

But when the justices began their questioning, the face-off turned into a series of hypotheticals designed to test how far Congress should be able to go in terms of requiring Americans to buy a product 鈥 in this case, health insurance. At times the hypotheticals 鈥 everything from requiring people to buy chocolate ice cream to requiring individuals to purchase a second car — became so frustrating that the lawyers turned red and took a step back to remind themselves they weren鈥檛 embroiled in a real-life courtroom drama.

Walter Dellinger, former acting solicitor general under President Bill Clinton, represented the Obama administration鈥檚 pro-mandate position. Dellinger before the Senate Judiciary Committee in favor of the law鈥檚 constitutionality. He boiled his argument down to the inevitability that all individuals will at some point need health care, and he said the individual mandate is authorized under Congress’ constitutional power to regulate interstate commerce. Dellinger also pointed to the Constitution鈥檚 , arguing that the mandate is necessary to enable the health law鈥檚 ban on insurers鈥 denial of coverage because of a pre-existing condition.

Representing the law’s opponents, Steven Bradbury, a partner with Dechert LLP who filed an against the severability of the mandate from the health law, said the mandate co-opts Americans鈥 economic freedom and 鈥渦ses it as a tool to counter a market problem created by the act itself鈥 with the pre-existing coverage provision. Bradbury added that 鈥渢he mandate goes well beyond the bounds鈥 of the necessary and proper clause, with an infringement of rights that forces individuals to enter and remain in the health care market.

While the justices didn鈥檛 make a decision, there was a question and answer period, and one law student asked the legal experts who were acting as 鈥渏ustices鈥 what they thought about the case鈥檚 moving parts.

David Cole, a Georgetown professor, said that the 鈥渘ecessary and proper鈥 argument was 鈥渆xtraordinarily strong,鈥 while the opposition鈥檚 arguments 鈥渄on鈥檛 seem to make much sense.鈥 But Seth Waxman, a solicitor general under Clinton, said the administration will be challenged by the mandate鈥檚 鈥渃omplete absence of a pedigree.鈥

One justice spoke for the rest of the panel and said, 鈥淲e don鈥檛 really think anything,鈥 generating one of a few moments of laughter during an otherwise tense afternoon.

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