Did the Supreme Court Get Snookered During Obamacare Oral Arguments?

| Thu May 10, 2012 12:37 PM EDT

Andrew Sprung has been on a crusade over the past month over a single issue brought up during the Supreme Court's oral arguments over Obamacare. The issue is catastrophic coverage, and today he summarizes everything he's written about it:

In his oral argument against the constitutionality of the ACA's individual mandate on March 27, plaintiff's counsel Michael Carvin asserted, "Congress prohibits anyone over 30 from buying any kind of catastrophic health insurance" (p. 105).

That is not true — the ACA provides the catastrophic coverage option for others exempt from the mandate, e.g. on grounds of financial hardship. And that factual error signals a greater distortion, one that was not countered and apparently made a major impression on Justices Alito, Roberts and Scalia: that the mandate forces Americans to buy coverage greatly in excess of what's required to offset the cost of catastrophic care for those lacking health insurance. No one pointed out that a) the ACA provides a catastrophic coverage option for those under 30; b) that it extends that option to others exempt from the mandate on financial or other grounds; or c) that the bronze plans offered in the exchanges, as the Kaiser Family Foundation recently detailed, might also reasonably be labeled "catastrophic" coverage.

Andrew suggests that the Obama administration should try to file a supplemental brief with the court: "One way or another, it seems to me worthwhile to try to reach Justice Kennedy and/or one of his colleagues with a two-track argument: 1) the mandate is properly 'minimized'; Congress exercised what you might call a self-limiting principle; and 2) if you don't think it is sufficiently minimized, limit it further without killing it."

There's more at the link, and even more links at the link. It's worth a read.

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