The Health Care Reform Debate Gets Stranger

Music mavens may remember the classic album put out by the Mamas and the Papas, "If You Can Believe Your Eyes and Ears." If you read through this and you still can, then perhaps you are "California Dreaming" (which was on that album).

Leave it to the debate over health care reform, or PPACA (The Patient Protection and Affordable Care Act), if you prefer, to bring forth some of the more interesting legal arguments that the world may ever see. Truth is stranger than fiction and listening to the audio of this testimony has proven it once again.

What am I talking about? The 6th Circuit Court of Appeals is now getting its chance to weigh in on PPACA. Specifically, the issue seems to be whether Congress has the right to enforce the so-called individual mandate. Proponents rely on the broad powers of Congress under the Commerce Clause (and yes those powers have historically been construed extremely broadly).

For those who would rather listen for themselves than read my verbosity, here is where you can click.

Back to the readers of the world. Understand that the 3-judge panel in this case consists of two republican-appointed judge (Judge Sutton and another) and one democrat-appointed judge. What we focus on is the testimony of Neal Kumar Katyal, Acting Solicitor General of the United States. Mr. Katyal ascended to this role when Elena Kagan was confirmed by the Senate to her appointment to the US Supreme Court.

In any event, the aforementioned Judge Sutton asked Mr. Katyal if he could name one case heard by the Supreme Court which considered the same question as that posed with respect to the individual mandate. Mr. Katyal conceded that it had never been considered exactly, but did bring up Heart of Atlanta Motel (you can read Justice Black's opinion here if you like).

For those who choose not to read this decision, I summarize. Heart of Atlanta Motel had a commercial restaurant that purposefully discriminated in choosing its customers on the basis of race (this was prior to the passage of the Civil Rights Act). The Supreme Court ruled that Congress could use its Commerce Clause power to bar discrimination in such commercial establishments.

You may wonder what the connection to health care reform is. I certainly did. But, as they say on late-night TV, "Wait, there's more!"

Judge Sutton said that the motel was in the business. Congress (and the Supreme Court) told them that if they didn't want to follow the law, they could exit the business. He pointed out that individuals are not given the option of 'exiting the business.' They can't just opt out of the individual mandate provision without financial penalty.

Wait, there's more! Mr. Katyal was prepared with an answer.

Individuals can avoid the individual mandate. As some readers undoubtedly know, individuals are exempt from the mandate if they cannot purchase health insurance for less than 8% of their income. So, Mr. Katyal explained to the 6th Circuit that an individual who wanted to 'exit' the individual mandate could simply earn less money and therefore exempt himself.

You have read correctly. Finis!