Health Law Heads to Court: Justices Hear Challenge in Case That Broadly Tests Boundaries of Federal Power
Monday, March 26, 2012
Health Law Heads to Court
Justices Hear Challenge in Case That Broadly Tests
Boundaries of Federal Power
By: Jess Bravin, Wall Street Journal
Does Congress have the power to mandate that everyone in the
U.S. have health insurance? The Manhattan Institute's Avik Roy and
Columbia University's Gillian Metzger discuss the Supreme Court's
hearing of the case with WSJ Legal reporter Ashby Jones.
WASHINGTON-In taking up President Barack Obama's health overhaul
Monday, the Supreme Court wades into an issue that not only could
sway this fall's elections but also could help define for
generations what Congress is and isn't entitled to do.
The court this week hears three days of arguments on the law's
constitutionality, with a ruling expected in late June. The
administration and its allies say the court must uphold the law to
ensure that Congress can tackle national problems by employing
comprehensive solutions. In jeopardy, critics say, is the
fundamental American conceit that the federal government should be
restricted in what it can require of citizens.
"This case will be a tremendous opportunity to reaffirm that
Congress is a legislature of limited powers," said Randy Barnett, a
Georgetown University law professor who is helping the
challengers.
On the eve of the court arguments, the case was being cast in
political tones. White House senior adviser David Plouffe said on
NBC's "Meet the Press" Sunday he was confident the justices would
uphold the law, saying that Americans were already benefiting from
elements of the plan. But Sen. Lindsey Graham (R., S.C.) said the
health law would be a top issue for the eventual Republican
nominee.
"From a political point of view, this is probably the
centerpiece of the debate in the fall-the proper role of
government," he said on CNN's "State of the Union."
More than two dozen people were snaked along the sidewalk
outside the Supreme Court by Sunday afternoon to secure seats to
Monday's arguments, which will focus on whether the case can even
be heard before 2014, when most of the law takes effect. Tuesday's
session will take up the central question of whether Congress holds
the constitutional power to require Americans to carry health
insurance or pay a penalty. This mandate, the government maintains,
is the essential innovation of the two-year-old Patient Protection
and Affordable Care Act and promotes near-universal coverage by
including younger and healthier people who might otherwise avoid
paying premiums.
Solicitor General Donald Verrilli will frame this
minimum-coverage requirement as simply a financing mechanism for a
product virtually all Americans will consume. He will contend it
falls squarely within congressional authority to regulate
interstate commerce.
Wednesday will see two sessions of arguments, including on how
much of the overhaul law should remain in effect should the
individual mandate be struck down. The final session will be
Wednesday afternoon.
Harvard University law professor Laurence Tribe, who taught both
Chief Justice John Roberts and Mr. Obama and was an Obama Justice
Department official, said opponents are asking the court to erase
the flexibility the Constitution's framers gave Congress. If the
court struck down Mr. Obama's law, said Mr. Tribe, it would
implicate "virtually every major piece of federal legislation
enacted over the past several decades, and many laws now in the
pipeline"-including proposals favored by conservatives.
Opponents-led by former George W. Bush Solicitor General Paul
Clement, representing 26 Republican-led states-say the
Constitution's clause allowing Congress to regulate interstate
commerce doesn't apply here. They say Congress is creating the very
"commerce" it wishes to regulate by compelling consumers to
purchase insurance.
Georgetown's Mr. Barnett said the court could strike down the
mandate using narrow language intended to avoid broader
implications. Challengers merely want the court to say that
"Congress has never gone here before, and it can't go here again,"
he said.
To date, the government has the most points on the scoreboard:
Three federal appeals courts have rejected challenges to the
Affordable Care Act, while one has struck down the individual
mandate but upheld the rest of the law. Moreover, the government
enters the court with four likely votes lined up, those of liberal
Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and
Elena Kagan, whose prior writings suggest they will view the
overhaul as within congressional discretion.
To win, the challengers must secure all five conservatives.
Based on his prior opinions, Justice Clarence Thomas seems
virtually certain to vote against the mandate. The records of the
other four, however, are sufficiently ambiguous as to make their
votes more difficult to predict. Of the justices considered
persuadable, Justice Anthony Kennedy may be the biggest target, as
his opinions were cited in the two sides' briefs far more than
those of any other justice.
The court also could punt. One federal appeals court, the Fourth
Circuit, in Richmond, Va., ruled that a challenge can only take
place in 2014 or after, when those penalized under the law's
insurance mandate actually have to pay their penalties.
The line between federal and state authority has moved back and
forth over more than two centuries of American history. The
Constitution itself was drawn up to bolster federal authority after
the Articles of Confederation, the initial compact among the
original 13 states, left the central government too anemic for the
new nation's needs.
The Health-Care Debate
Read a timeline of events surrounding President Barack Obama's
health-care legislation, from the bill's path through Congress to
continuing legal challenges.
In the 19th century, the Supreme Court rejected state claims
that Congress lacked authority to establish a national bank, but it
later struck down federal laws limiting the expansion of slavery-a
decision that precipitated the Civil War. The postwar
Reconstruction amendments then gave Congress new powers to protect
individuals from abusive state governments.
From the Gilded Age through the first years of the Great
Depression, the high court regularly reined in federal economic
legislation, striking down Washington's efforts to eradicate child
labor, improve working conditions and promote food safety. But over
the past 75 years, the court almost always has deferred to Congress
when it asserts the commerce power, upholding not only direct
regulation of commercial transactions but also activities with
"substantial effects" on interstate commerce. Agricultural quotas,
environmental laws and the Civil Rights Act of 1964, barring
discrimination in hotels and restaurants that might serve
interstate travelers, all have been upheld.
Two experienced conservative appellate judges, Lawrence
Silberman and Jeffrey Sutton, cited those recent precedents in
upholding the Obama health law.
The challengers accept that the federal government can
legitimately seek to improve access to health care. They
acknowledge that states could individually adopt virtually
identical plans-as Massachusetts has-and that Congress could enact
even more aggressive means of promoting universal coverage, such as
extending a Medicare-type single-payer system, to all Americans.
They say, however, that the particular way the Affordable Care Act
is structured violates an intricate constitutional framework
intended to constrain federal power by channeling it through a
limited set of policy options.
"There is one thing that distinguishes many of the alternative
means from the mandate: accountability," the Republican-led states,
led by Florida, say in their brief. They describe the coverage
mandate as a way to avoid the political opposition that more direct
health-care fixes would stoke. "That there is not the political
will to" adopt such methods "does not give Congress license to
resort to a shortcut for which there was just barely the presence
of political will, but the absence of constitutional authority,"
the states say.
Other states, led by Maryland, disagree. In a
friend-of-the-court brief, 13 mostly Democratic-controlled states
and territories argue the law complements efforts to boost health
access. "The federal commerce power exists precisely to allow
Congress to address problems-like those that plague the nation's
health-care system-that do not respect state boundaries," they
say.