High court weighs hearing arguments on health-care law
Wednesday, November 09, 2011
High court weighs hearing arguments on health-care law
By: Joan Biskupic, USA TODAY
WASHINGTON - The case is shaping up to be the most contentious
at the Supreme Court in more than a decade, but everyone involved
agrees at least on one point: They need to know as soon as possible
whether the new health-care law is constitutional.
The legislation, whose passage consumed much of President
Obama's first year in office, extends insurance coverage to more
than 30 million Americans through various measures including the
expansion of Medicaid and a mandate that most Americans buy health
insurance by 2014.
Obama says the law is critical to improving medical care
nationwide, but Republican critics warn it would put new financial
burdens on states, hurt small businesses and undermine individual
choices about care.
Beyond the highly charged politics surrounding the law, legal
questions loom.
Individuals who have shunned insurance need to know whether they
will be forced to buy coverage or face a tax penalty. Government
agencies need to know what regulations to put in place. Employers
need to know what incentives or penalties they might have related
to employee coverage. And states need to know their costs under
Medicaid, the federal-state program for the poor, as eligibility
expands.
The high court will meet in private Thursday to decide whether
to hear arguments in the dispute that has split lower courts and
become the most politically divisive case since the Bush v.
Gore presidential election dispute in 2000. Another lower
court weighed in Tuesday, upholding the law in a decision by
prominent conservative Judge Laurence Silberman, a 1985 appointee
of Ronald Reagan.
Until the high court rules, the National Federation of
Independent Business tells the justices in a brief, "the entire
nation will remain mired in doubt" over future costs.
The group says that uncertainty "imposes an enormous drag on the
economy."
At stake, Justice Department lawyers say, is a central piece of
a regulation intended to address "a profound and enduring crisis in
the market for health care."
The litigation that began almost as soon as Obama signed the
Affordable Care Act in March 2010 has taken on an increasing sense
of urgency.
"The stakes are huge going into the case," says Stanford
University law professor Pamela Karlan. "The case will determine
how much power the federal government has to deal with life in the
21st century, health care being among the most important
issues."
The answer is likely to come next summer as the court finishes
up its annual term, just before the Republican and Democratic
conventions for the 2012 presidential election.
The justices are all but certain to take up disputes over the
law.
They have discretion in what appeals they consider, but they
almost always accept petitions from the U.S. solicitor general when
an act of Congress has been invalidated.
The White House has compared the health-care law to the landmark
Social Security Act of 1935.
Attorneys for 26 states, among the many groups that sued over
the law, counter that it wrongly imposes "new federal obligations
on every corner of society."
'A hugely important case'
In their private conference room off the chambers of Chief
Justice John Roberts, the justices also will take the first step
toward determining the scope of their review and what questions
they want answered.
The main issue is whether Congress exceeded its power to
regulate interstate commerce with the requirement that Americans
buy health insurance by 2014.
Yet there are other questions on the table, including whether
Congress unconstitutionally expanded Medicaid and whether the
entire law is doomed if one piece of it is voided.
The nine justices are likely to be aware of the swirl of public
attention around the case.
"The justices are human beings. I don't think there's any doubt
they think this is a hugely important case," says Irving Gornstein,
director of the Georgetown Law Supreme Court Institute.
Yet, George Washington University law professor Orin Kerr says,
"I suspect that this may be a case that looks different inside the
court than outside."
Although the law is a political flashpoint, opposed by all the
major Republican presidential candidates, Kerr says that to the
justices, it is quite simply "a federalism case," regarding the
division of power between the federal government and states.
Among those challenging the law are 26 states such as Florida
that say the government exceeded its power and encroached on state
matters; individuals such as auto repair shop owner Mary Brown who
refuse to buy insurance; and employers such as Virginia-based
Liberty University that shun increased responsibility for providing
coverage.
Federal trial judges, at the first rung of the three-tier
judiciary, issued a series of conflicting opinions on the law, and
circuit courts of appeals, at the second rung, soon weighed in. The
following decisions are now before the high court:
•The Atlanta-based 11th Circuit ruling of Aug. 12, which struck
down the requirement that people buy insurance as an
"unprecedented" exercise in federal power that threatens the
balance between federal and state authority.
•The Richmond-based 4th Circuit decision of Sept. 8, which
rejected challenges to the law on the grounds that no objection
could be made to the insurance mandate until someone was forced to
pay the tax penalty in 2014.
The Justice Department, states and private groups have urged the
justices to reject this reasoning and decide on the merits of the
dispute now.
•The Cincinnati-based 6th Circuit's ruling of June 29, which
spurned challenges to Congress' power to regulate interstate
commerce. One of the judges on the panel was Jeffrey Sutton, an
appointee of George W. Bush who, before becoming a judge, was a
vigorous advocate for limited federal power.
Yet Sutton said the insurance mandate did not exceed Congress'
power to regulate commerce.
"The basic policy idea … is to compel individuals with the
requisite income to pay now rather than later for health care.
Faced with $43 billion in uncompensated care, Congress reasonably
could require all covered individuals to pay for health care now so
that money would be available later to pay for all care as the need
arises," Sutton wrote in his opinion.
Tuesday's 2-1 decision by the U.S. Court of Appeals for the D.C.
Circuit took a similar stance, declaring the insurance mandate a
proper exercise of Congress' commerce power.
Judge Silberman, who approvingly cited Sutton, added that courts
must "presume that acts of Congress are constitutional." He joined
by Judge Harry Edwards, an appointee of Jimmy Carter. Judge Brett
Kavanaugh, named by George W. Bush, dissented.
U.S. Solicitor General Donald Verrilli, leading the government's
defense of the sweeping law, weaves Sutton's views throughout his
filings to the high court.
"The minimum coverage provision simply ensures that individuals
who can afford insurance … will pay for the health-care services
they consume and the risks to which they are exposed, rather than
shift those costs and risks to others, now and in the future,"
Verrilli says.
If Congress can do this, says lawyer Michael Carvin,
representing the National Federation of Independent Business,
Congress would have to the power "to compel any product purchase,
because there is nothing constitutionally unique about health
care."
Lawyer Paul Clement, who represents the 26 states, says the
insurance mandate calls into question "bedrock principles of our
constitutional system," chiefly that federal power is limited.
He stresses that a person's decision not to buy insurance simply
cannot be regarded on the same terms as someone's decision to
engage in a commercial transaction.
Preparing for a decision
Once the high court accepts the case, a new round of briefs
would be filed and oral arguments would be scheduled, probably in
March.
A ruling likely would come by the end of June, when the justices
traditionally recess for the summer.
The sooner a resolution comes, the better, Carvin says.
"Businesses are going to be spending billions of dollars in
preparation."
Carvin was reluctant to make predictions about a ruling. Justice
Department lawyers declined to elaborate on their written
filings.
George Washington University professor Kerr, a former law clerk
to Justice Anthony Kennedy, predicts the law ultimately will
stand.
He believes the four liberal-leaning justices -Ruth Bader
Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan- would
vote to uphold the law based on past rulings and their
backgrounds.
Kerr notes that Breyer and Ginsburg have expressed views giving
Congress generous power to regulate commerce.
He adds that Kagan and Sotomayor, both appointed by Obama, would
be likely to adopt the prevailing Democratic view that the law is
constitutional.
The law's challengers, then, would need all five of the more
conservative justices to prevail: Roberts and Antonin Scalia,
Samuel Alito, Clarence Thomas, and Kennedy.
Kerr predicts that at least Kennedy would vote to uphold the
insurance mandate as a valid exercise of commerce power, based on
Kennedy's past writings.
Clement, representing the states, dismisses such
predictions.
"In the immediate aftermath" of the law's enactment, Clement
says, "a lot of people said that there was no serious
constitutional issue here at all. One thing we've learned in the
last couple of months is that there is a serious constitutional
issue here."