Health care law tied to unconstitutional mandate, attorney says

John O'Brien Oct. 26, 2011, 10:13am


WASHINGTON (Legal Newsline) - Former U.S. Solicitor General Paul Clement gave a preview of his future argument in the health care challenge on Wednesday.

Clement spoke at the 12th annual Legal Reform Summit about past and future U.S. Supreme Court decisions that affect business, saving his thoughts on the health care challenge for last. Clement is representing 26 states that claim the law's individual mandate is unconstitutional.

The law, passed in March 2010, requires individuals who do not purchase health insurance to pay a $695 yearly penalty.

Clement says that the court should find that mandate unconstitutional and void the entire law.

"If the court has a negative reaction to the individual mandate, it will be hard for them to say nothing else goes," Clement said.

In August, the Third Circuit ruled that a group of New Jersey physicians did not have standing to challenge the law.

The U.S. Court of Appeals for the 11th Circuit's August decision affirmed an earlier one by U.S. District Judge Roger Vinson, of Florida.

Eleventh Circuit Chief Judge Joel Dubina authored its opinion and was joined by Judge Frank Hull in the majority. Judge Stanley Marcus voted against the states.

"The individual mandate exceeds Congress's enumerated commerce power and is unconstitutional," Dubina wrote. "This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives."

In January, Vinson found that Congress was unconstitutionally regulating economic inactivity and, because the mandate is too integral a part to be separated, he voided the entire legislation. He called it a "difficult decision to reach."

The 11th Circuit's decision, though, did not void the entire legislation.

"Excising the individual mandate from the Act does not prevent the remaining provisions from being 'fully operative as a law,'" Dubina wrote.

Clement does not agree. He claims other parts of the law are funded by an increased rate of purchase for health insurance. Those provisions are "tethered" to the mandate, he says.

The Legal Reform Summit is put on by the Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce. The ILR owns Legal Newsline.

From Legal Newsline: Reach John O'Brien by e-mail at

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