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."

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