[JURIST] The federal government filed a brief [text, PDF] on Friday before the US Supreme Court [official website] arguing that the minimum coverage provision of the Patient Protection and Affordable Care Act (PPACA) [HR 3590; JURIST backgrounder], which requires almost every US citizen to obtain health insurance by 2014 or face a tax penalty, is constitutional. The government is attempting to keep the focus of the argument on health care reform as a whole [SCOTUSblog report], rather than on the specific minimum coverage provision. Twenty-six states filed a supporting brief [text, PDF] arguing that the minimum coverage provision cannot be severed from the health care reform act without the entire system collapsing. The federal government argues that the insurance-purchase mandate is not a new concept invented by the Left and even points to the fact that several conservative groups, including the American Enterprise Institute and the Heritage Foundation [advocacy websites], proposed such a solution when then-president Bill Clinton proposed health care reform in the 1990s. Critics of the minimum coverage provision argue that there would be no end to government power if the federal government can impose tax penalties for declining to purchase a private corporate product. The so-called “broccoli question” [Forbes report] asks: if the federal government can penalize you for not purchasing health insurance, can it then also penalize you for not purchasing broccoli? In response, the government has argued that its power to impose tax penalties for not purchasing health insurance is rooted firmly in the government’s commerce-regulating power under the Commerce Clause [Cornell LII backgrounder]. The government cited the fact that in 2008 uninsured individuals used $116 billion in healthcare services (37 percent of which was uncompensated and 26 percent of which was paid by charities and government programs) and visited hospitals 2.1 million times. The uncompensated 37 percent of the health care services used, $43 billion, is then passed onto insured individuals, costing the average insured family more than $1000 per year. The federal government argues that this national cost-shifting mechanism implicates interstate commerce, thus it has the power to regulate it.

The court granted certiorari to rule on health care reform law [JURIST report] in three separate cases, reserving five-and-half-hours for oral argument on the issue. The court agreed to hear two hours of arguments on the constitutionality of the individual insurance mandate issue in Department of Health and Human Services v. Florida [docket; cert. petition, PDF]. The court will consider Issue 1, which asks, “whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision.” The court also directed parties to brief and argue the question of whether the challenge to PPACA is barred by the Anti-Injunction Act [26 USC § 7421(a)], reserving one hour for argument on that issue. The court consolidated the cases of National Federation of Independent Business v. Sebelius [docket; cert. petition, PDF] and Florida v. Department of Health and Human Services [docket; cert. petition, PDF] and will hear 90 minutes of oral argument on the question of whether the individual mandate provision can be severed from the remainder of the act. Finally, the court will hear one hour of oral argument on the question of Medicaid expansion—Issue 1 in Florida v. Department of Health and Human Services: “Does Congress exceed its enumerated powers and violate basic principles of federalism when it coerces States into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program…?” All three cases that the court agreed to hear arose out of the US Court of Appeals for the Eleventh Circuit, which ruled in August that the individual mandate is unconstitutional but severable [JURIST report], upholding the rest of the law.