World and Nation

Some common ground found for legal adversaries on health care law

WASHINGTON — The 2010 health care overhaul law has provoked an unprecedented clash between the federal government and 26 states, dividing them on fundamental questions about the very structure of the federal system. But the two sides share a surprising amount of common ground, too, starting with their agreement in briefs, filed Wednesday, that the Supreme Court should resolve the clash in its current term.

Until just days ago, it was hardly clear that the Obama administration would agree with the states on the need for prompt review, as there were good political reasons for moving slowly. The court’s decision is now most likely to come just months before the 2012 presidential election.

Their briefs also reflect agreement on matters of substance. The two sides, along with the judges in the majority in the appeals court decision most likely to be reviewed by the justices, all said the dispute is about means rather than ends. There are other ways, they said, for Congress to achieve near-universal health coverage, some of them more expansive than what was enacted.

“Both sides agree that Congress has the constitutional power to enact a national health care system that raised taxes to support a single government agency that pays all medical bills, just like Medicare,” said Walter Dellinger, who served as acting solicitor general in the administration of President Bill Clinton and supports the law.

Randy E. Barnett, a lawyer for some of the plaintiffs who on Wednesday sought Supreme Court review, made essentially the same point.

“What I’ve said from Day One,” he said, “is that if Medicare is constitutional then Medicare-for-everyone is constitutional.”

Dellinger said there was irony in this harmony. “The constitutional attack is focused on a mandate that was necessary if the new system was to utilize the existing private market, which had traditionally been a conservative and Republican proposal for how to deal with health care,” he said.

To be sure, the two sides dispute whether Congress has the power under the Constitution’s commerce clause to require people to buy insurance through what the federal government calls a minimum coverage provision and the plaintiffs call an individual mandate.

But they agree that Congress could have achieved much the same thing through a slightly different mechanism, as Judge Stanley Marcus wrote in his dissent from the 2-to-1 decision issued in August by a panel of the 11th U.S. Circuit Court of Appeals in Atlanta.