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"Mock Moot" Previews Affordable Care Act Case

February 2, 2012 — On February 1, Georgetown Law’s Supreme Court Institute (SCI) offered more than 300 attendees in Hart Auditorium a unique preview of the oral arguments in the upcoming Supreme Court case Department of Health and Human Services v. Florida — the constitutional challenges to the Affordable Care Act.

Walter Dellinger (at podium) delivers a mock oral argument to (left to right) Seth P. Waxman, Kathleen M. Sullivan, Irv Gornstein, Kannon K. Shanmugam, Maureen E. Mahoney and David D. Cole.
Walter Dellinger (at podium) delivers a mock oral argument to (left to right) Seth P. Waxman, Kathleen M. Sullivan, Irv Gornstein, Kannon K. Shanmugam, Maureen E. Mahoney and David D. Cole.

“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.

With top Supreme Court practitioners playing the roles of advocates and justices — former acting U.S. Solicitor General Walter Dellinger represented the “government” and Dechert’s Steven G. Bradbury represented the “challengers” — the “mock 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,” said Dellinger, asserting in the moot that the requirement to maintain coverage was a valid exercise of congressional power under either the Commerce Clause or the Necessary and Proper Clause.

Bradbury, acting in his role as challenger, said, “Regulating commerce … does not include forcing people to participate in the market against their will. … No act of Congress and no decision of this Court in history remotely suggests a different conclusion.”

The “justices” — including Professor David Cole, SCI Executive Director Irv Gornstein and former Solicitor General Seth P. Waxman — sought to determine if the mandate provision is severable from the rest of the law and whether its existence 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,” said Cole, acting in his role as a skeptical justice. “After all, it’s inevitable that we’ll eat ice cream at some point in our lives.” Appellate attorneys Maureen Mahoney, Kannon K. Shanmugam and Kathleen M. Sullivan rounded out the panel of “justices.”

The debate “captured a rare moment in America’s history where the Supreme Court will determine whether the United States coalesces behind an historical health system reform providing near-universal coverage or retreats from it,” noted Larry Gostin, the Linda D. and Timothy J. O’Neill Professor of Global Health Law, after the event. “The adversaries … offered an insightful preview of the constitutional and social policy consequences of this momentous Supreme Court decision.”

For a webcast of the event, click here.

-- Ann W. Parks

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