Georgetown “Mock Moots” Affordable Care Act Case
February 2, 2012 – Practitioners with the nation’s highest court served as mock justices and advocates yesterday at Georgetown’s “Mock Moot” of the Affordable Care Act Case the U.S. Supreme Court will hear this spring.
The Law Center’s Supreme Court Institute (SCI) held the moot, which included Georgetown law professor David Cole, former acting U.S. Solicitor General Walter Dellinger and former Solicitor General Seth P. Waxman.
“Because very few of us will have the opportunity to observe the actual oral arguments at the Supreme Court in March, the SCI decided to offer the next best thing,” explained Dori K. Bernstein, the institute’s deputy director.
Government vs. Challengers
The moot offered more than 300 attendees a preview of oral arguments and constitutional challenges that may come up when the Supreme Court hears the Department of Health and Human Services v. Florida.
Dellinger represented the “government” while Steven G. Bradbury, a partner at Dechert law firm, represented the “challengers.”
The moot addressed the new law’s requirement that all citizens not receiving government assistance maintain minimum health care coverage or pay a fine.
“If you guarantee people the right to buy health insurance at any time, you also need some incentive for people to obtain insurance in advance of illness or injury,” Dellinger said.
He argued that the requirement to maintain coverage is a valid exercise of congressional power under the Commerce Clause or the Necessary and Proper Clause.
“Regulating commerce … does not include forcing people to participate in the market against their will,” Bradbury replied. “ … No act of Congress and no decision of this court in history remotely suggests a different conclusion.”
Ice Cream Argument
The “justices” – which included Cole, Waxman and SCI Executive Director Irv Gornstein – sought to determine if the mandate provision of the act is severable from the rest of the law and if it might open the door for government intrusion.
“Congress could, in the interest of improving ice cream marketing, require that everyone buy five gallons of chocolate ice cream every week,” Cole said in his role as justice. “After all, it’s inevitable that we’ll eat ice cream at some point in our lives.”
Maureen Mahoney, of counsel at Latham & Watkins, who also served as a "justice," made a similar point, wondering if it would be appropriate to make people who drive more than 1,000 miles per year within the next five years buy an electric car.
“Is that constitutional under the Commerce Clause as a regulation of the market for electric cars?” she asked Dellinger.
Kannon K. Shanmugam, a partner at Williams & Connolly, and Kathleen M. Sullivan, a partner at Quinn Emanuel, also served as “justices” in the moot.
Larry Gostin, Georgetown’s Linda D. and Timothy J. O’Neill Professor of Global Health Law, was one of the faculty members attending the event.
“[The debate] captured a rare moment in America’s history where the Supreme Court will determine whether the United States coalesces behind a historical health system reform providing near-universal coverage or retreats from it,” he said. “The adversaries … offered an insightful preview of the constitutional and social policy consequences of this momentous Supreme Court decision.”