State AGs Coakley, Cuccinelli lay out opposing cases in Supreme Court Health Warmup

February 16, 2012 -- In a vigorous National Press Club Newsmakers debate recently on the Affordable Health Care Act's constitutionality that was a preamble to the Supreme Court's upcoming March consideration, Virginia Attorney General Kenneth Cuccinelli asserted that the health bill's mandate "crushes liberty."  Massachusetts Attorney General Martha Coakley countered that "We don't leave people at the ER door unless we change the slogan to 'Live Free and Die.'"

Coakley, who spoke first, contended that the Massachusetts health law (so-called Romney Care) is a "prototype" of what the (federal) bill does.

She pointed out that Governor Romney in 2006 stated that the bill was "not only constitutional but good public policy."

She provided statistics that 98% of Massachusettsresidents now have health care access, which she stated is 15% higher than the national average, and the Massachusetts law reduces spending and emergency room care costs by over 30%.

Coakley said that approval of the mandate is "not even a close call" under the Commerce and "Necessary and proper" provisions.  She cited as precedent the 1942 Wickard v. Filburn case regulating the wheat market.

Cuccinelli argued that "The federal government cannot compel you into commerce or to buy a product."  He said that "if you are ordered to buy health care, you can be ordered to buy a car or a gym membership." 

He contended that the "mandate requires a radical, dramatic expansion of the Commerce Clause." During questions, Coakley pointed out that auto insurance is required, and precedent allows congressional action on health care. Cuccinelli responded that the difference between state and national requirements is significant.

To a key question of whether the bill's signal new provisions that people are already enjoying– children's coverage through 26, seniors paying less for drugs, no pre-existing condition denials, no lifetime caps, insurance companies' requirement of at least 85% back in benefits, and oversight of premiums among them -- can be kept if the overall mandate is ruled unconstitutional, Coakley asserted, "The Courts so far have ruled that it is severable.  Congress will have to find a way to pay for them."

Cuccinelli countered that if the provisions are severed, you also have to drop the Medicaid expansion as a burden to the states. 

Coakley responded that those are not just a burden but also benefit the states, so any Medicaid denial would be unprecedented.  Both Coakley and Cuccinelli agreed that since the Court has always approved Medicaid, any denial now would have to be based on a "significant burden" and "coercion" to break precedent. Coakley said that would be an "uphill battle" to prove.

Cuccinelli stated that he expected a 5-4 ruling but "the lineup of justices may not be as predictable as you would think."

Both Attorneys General were asked if "the politics of the court—the appointing power" rather than the merits of the policy would drive the decision.  While Cuccinelli conceded that "it should not surprise anyone that judges and justices tend to be closer to the world view of the presidents that appoint them," both Coakley and Cuccinelli agreed that in a "close case" this significant, the justices would rule on the merits.