Later this month, the Supreme Court will consider whether the Affordable Care Act- the President’s new health care law- is constitutional. Alaska has joined with 25 other states to argue that it is not. Attorney’s with the Department of Law want to stop what they think is too much federal government intrusion.
It’s called the broccoli argument. And it’s a simple way for the states suing the federal government to explain one of their main problems with the health care law. They disagree with the part of the law that requires taxpayers to buy health insurance or pay a penalty- the individual mandate. They say if the government is forcing you to buy health insurance today, they could be forcing you to by broccoli tomorrow. And that violates the commerce clause.
“The analogy is apt to explain the breadth of the argument.”
Stacie Kraly is Chief Assistant Attorney General with the state. Participation in the lawsuit means that she and other attorney’s with the Department of Law have been reviewing and commenting on the briefs the states have filed with the Supreme Court. The states are being represented by Paul Clement, a former Bush administration solicitor general. Besides arguing against the individual mandate, they’re also making a case against the Medicaid expansion. That part of the law makes more adults eligible for Medicaid beginning in 2014. Kraly says states will effectively be forced to participate in the program.
“If we opt not to participate in the expansion, we would lose all of our Medicaid funding, not just the expansion part of it so it’s kind of an all or nothing proposition under the Affordable Care Act and the state believes that that is coercive in nature.”
State Senator Hollis French, a Democrat from Anchorage doesn’t want to comment on the Medicaid expansion. But he doesn’t buy the broccoli argument against the individual mandate. Instead, he prefers a different analogy.
“It’s very, very similar to the mechanism that millions of Americans are familiar with and that’s the requirement that you have insurance when you drive a car. It’s not that radical.”
French doesn’t understand why the state is spending money on the lawsuit when plenty of other states are already suing.
“But really to me the big disappointment is the failure of the administration to put out some reasonable alternative that gets the job done. That is if you don’t like the approach taken by the Affordable Care Act, what approach do you like that covers the 115,000 Alaskans who do not have health insurance coverage, the way the governor enjoys and other people who work in the legislature enjoy.”
But Senator French and Assistant Attorney General Kraly do agree on one thing: they think it’s a fascinating case. Kraly says the sheer size of the Affordable Care Act ensures that:
“The breadth and the expanse of it creates legal issues that have never been raised before. You know the scope of the commerce clause, taking it to this degree taking it this degree has never been attempted before, so it’s a novel legal argument in that context so there are just interesting legal arguments.”
Kraly declined to speculate on how the court will rule. And French wouldn’t either:
“Oh that’s a bad idea. You know it’s an interesting court and an interesting question, but I’ll stay off of the guessing.”
The Supreme Court will begin hearing the case on March 26. The arguments could take two or three days. The court is expected to rule sometime in June.
This story is part of a reporting partnership that includes APRN, NPR and Kaiser Health News.