Posts Tagged ‘Constitution’

The Supreme Court Takes on the ACA

Tuesday, March 27th, 2012

As the Supreme Court begins three days of hearing about the constitutionality of the Patient Protection and Affordable Care Act (ACA), Americans have mixed feelings about President Barack Obama’s signature healthcare overhaul.  The individual mandate is extremely unpopular, despite the fact that approximately 80 percent of Americans have healthcare coverage through workplace plans or government insurance such as Medicare and Medicaid.  When the insurance obligation kicks in, the majority of Americans won’t need to buy anything new.  The bottom line appears to be that Americans object to being told how to spend their money, even if it solves the dilemma of the nation’s more than 50 million uninsured.  One critic dismissed the individual mandate by saying “If things were that easy, I could mandate everybody to buy a house and that would solve the problem of homelessness.”

Listen to Republicans describe the law as an attack on personal freedom, and you’d be surprised to learn that the idea originated with them.  Its model is the Massachusetts law enacted in 2006 when Mitt Romney was the governor.  Former House Speaker Newt Gingrich supported an individual mandate as an alternative to President Bill Clinton’s healthcare proposal, which put the burden on employers.  All four GOP candidates have promised to repeal the Affordable Care Act, which they describe as “Obamacare.”  Former Senator Rick Santorum (R-PA) terms it “the death knell for freedom.”

President Obama and congressional Democrats passed the mandate in 2010, without Republican support, in an effort to create a fair system that assures that all Americans — whether rich or poor, young or old — get the healthcare they need.  One thing that proponents point out is that other economically advanced countries have succeeded at it.  Congress determined that when the uninsured visit a clinic or the emergency room, the care they can’t afford costs roughly $75 billion a year.  A large percentage of that cost ends up adding $1,000 a year to the average family’s insurance premium.

In legal briefs challenging the law, opponents contend that the “minimum coverage requirement” — known as the individual mandate — would set a precedent that could apply to literally anything.  If it’s legal for Americans to be told to buy health insurance, Congress could try to impose “a broccoli mandate, a car-purchase mandate, really any other mandate that you’d want,” said Ilya Somin, a law professor at George Mason University.  “There are lots of interest groups that would love to lobby Congress to require people to buy their products.”

The mandate is intended to ensure that new insurance market reforms in the law work as intended.  Unless younger, healthier people — who often don’t purchase insurance until they get sick — are covered, the costs of those changes would be exorbitant.  In response to opponents’ admonitions that a mandate to buy insurance could lead to other government-required purchases, the Obama administration argued that no such examples exist.  “Respondents acknowledge that states do have the power to enact purchase mandates, but they identify no example of any state ever having compelled its citizens to buy cars, agricultural products, gym memberships or any other consumer product,” according to the Obama administration.

Not surprisingly, 73 percent of Americans believe that the Supreme Court will be influenced by politics when it rules on the constitutionality of the ACA.  The attitude crosses party lines and is particularly popular with independent voters, of whom 80 percent believe that the court will not base its ruling strictly on its legal merits, according to a Bloomberg National Poll.  Seventy-four percent of Republicans and 67 percent of Democrats believe that politics will be a determining factor in the court’s healthcare decision.

“I always worry when the court steps into the political thicket,” said Barbara Perry, a Supreme Court scholar and professor at the University of Virginia in Charlottesville.  “It does so at its peril.”  The justices themselves say that politics doesn’t impact their decisions.  “It is a very serious threat to the independence and integrity of the courts to politicize them,” Chief Justice John Roberts said at his 2005 Senate confirmation hearing.  Justice Stephen Breyer told Bloomberg News that politics doesn’t influence the court, even in cases with electoral implications.  “It would be bad if it were there,” he said.  “And I don’t see it.”

In reviewing the ACA, the Supreme Court is entering territory that it hasn’t approached since the days of Franklin Delano Roosevelt: ruling on a president’s signature legislative victory in the midst of his re-election campaign.  Justices are taking more time to listen arguments — six hours over three days — than any other case in the last 44 years.   “This is a central challenge to the modern Constitution, which was fashioned during the New Deal and then elaborated further during the civil rights revolution,” said Bruce Ackerman, a professor at Yale Law School in New Haven, Connecticut and author of The Decline and Fall of the American Republic.  “This goes to the very foundations of modern American government.”

The closest comparable was 76 years ago, involving Roosevelt’s New Deal, a response to the Great Depression.  It wasn’t a single piece of legislation and included the creation of Social Security.  The court ruled against parts of the New Deal, while leaving others in place.  The principal decision came when the court struck down much of the National Industrial Recovery Act, which allowed industries to create trade associations that set quotas and fixed prices.

Those wishing to tune in and watch the excitement are destined to be disappointed. The Supreme Court will make available same-day audio of the oral arguments.  In its announcement, the court said it is making the audio available because of the “extraordinary public interest” in the case.

U.S. Supreme Court Is Likely to Decide On the ACA This Term

Tuesday, October 11th, 2011

As of the first Monday of October, the United States Supreme Court is back in session and likely to make what could be a momentous decision on the Patient Protection and Affordable Care Act (ACA).  The nation’s highest court will consider President Barack Obama’s landmark healthcare overhaul, which impacts almost everyone in the country.  The Obama administration’s request last week that the justices resolve whether or not the healthcare law is constitutional makes it more likely than not that they will deliver their verdict by next June, shortly before the president and his Republican opponent move into the fall general election campaign.

Already, the GOP presidential candidates are taking advantage of virtually every debate and speech to attack Obama’s major domestic accomplishment, which extends health insurance to more than 30 million people who now lack coverage.  If, as expected, the justices agree to review the law’s constitutionality, those deliberations would define the court’s coming term.  Their decision could rank as the court’s most momentous since the December, 2000, ruling that sent George W. Bush to the White House.

According to the Med Page Today website, “The Obama administration petitioned the Supreme Court to decide on the constitutionality of the ACA, making it very likely that the high court will hear at least one of the cases challenging the landmark healthcare reform law before next year’s presidential election.  The U.S. Appeals Court for the 11th Circuit ruled in August that the individual mandate provision of the ACA is unconstitutional.  The Justice Department had until November to ask the Supreme Court to hear the case, but filing its petition sets the stage for oral arguments in the spring, and a final decision in June — at the height of Obama’s re-election campaign.  The 11th Circuit case was filed by 26 states that object to the ACA on a number of fronts, but opposition to the individual mandate is the main thrust of their argument.  The individual mandate, considered the linchpin of the law, requires everyone to have health insurance by 2014.  In its petition, lawyers for the Obama administration said the appeals court decision is ‘fundamentally flawed.’”

Supreme Court analysts say it is difficult to predict how the court would rule on the conservative challenge to the health care law.  Miguel Estrada argued several cases before the Supreme Court as an official with the Justice Department in the 1990s.  “The issues are really hard. Every time you ask the Supreme Court to overturn an act of Congress, it is a very difficult thing for the court to do. And Congress comes to the Supreme Court with a presumption of deference (to Congress) and constitutionality,” said Estrada.

Writing on the Big Think website, Robert de Neufville writes that “The administration’s decision strongly suggests that it will ask the Supreme Court to hear the case, since it doesn’t want the 11th Circuit’s decision to stand.  That puts the Supreme Court in the difficult position of having to rule on a politically charged piece of legislation during an election year.  Rick Hasen (of the Election Law Blog) that a Supreme Court decision is win-win for Obama: either the court affirms the constitutionality of the law or it seems to overreach by overturning it.  By the same token, ruling on the law may be a lose-lose proposition from the perspective of the court.  Whatever the court decides it will seem to be taking sides in a political struggle.  As Slate’s Dahlia Lithwick says,  there may not be five justices who want to want to make the court itself an election-year issue.  Lithwick says that “I don’t think Chief Justice John Roberts wants to borrow that kind of partisan trouble again so soon after Citizens United, the campaign-finance case that turned into an Obama talking point.  And I am not certain that the short-term gain of striking down some or part of the ACA (embarrassing President Obama even to the point of affecting the election) is the kind of judicial end-game this court really cares about.  Certainly there are one or two justices who might see striking down the ACA as a historic blow for freedom.  But the long game at the court is measured in decades of slow doctrinal progress — as witnessed in the fight over handguns and the Second Amendment — and not in reviving the stalled federalism revolution just to score a point.” 

The editors of Bloomberg Business Week fear the collateral damage that overturning the ACA might cause.  They note that “Should the Supreme Court take up healthcare reform this year?  So far, only one appeals court has ruled that the ‘individual mandate’ in ObamaCare — the requirement that virtually everybody must buy insurance, with government assistance if needed — overreaches the federal government’s powers under the commerce clause of the Constitution.  It’s not a trivial argument.  But an affirmative ruling would be a huge departure from our understanding of the commerce clause going back to the New Deal.  If the healthcare law’s individual mandate is unconstitutional, so is much of what the government has been doing for 80 years or so, and it will be the duty of the Supreme Court to sort through the ruins of the federal government as we know it and find a few shards to start building again.  We can’t help but suspect that the court will choose to avoid this opportunity, by not taking the case, by finding some other grounds for ruling, or by upholding ObamaCare.

“Ever since it passed in 2010, ObamaCare has been attacked as a costly and possibly unconstitutional intrusion of the federal government into people’s lives.  Almost the central issue in the campaign for the Republican presidential nomination has been the resemblance between ObamaCare and the state healthcare plan enacted in Massachusetts under then-Governor Mitt Romney.  Today, most Democrats feel the less said the better.  But if the new law loses in the Supreme Court, the political ramifications may look very different.  If the Supreme Court kills healthcare reform, it will stay dead a long time.  It took 17 years before anybody felt like scaling that mountain again after Hillary Clinton’s failure two administrations ago.”

Luck of the Draw: Virginia Appellate Judges Are Likely to Favor the Affordable Care Act

Tuesday, May 17th, 2011

As the Patient Protection and Affordable Care Act (ACA) heads to the 4th U.S. Circuit Court of Appeals, President Barack Obama may have lucked out.  Of the three judges who were randomly chosen to hear the case, two are Obama appointees; the third was appointed by President Bill Clinton.  In one case, the federal government is appealing a ruling that struck down the law’s requirement that all Americans must purchase health insurance or pay a penalty.  In the second case, Liberty University is appealing another judge’s ruling that upheld the healthcare reform law.

It’s highly likely that this court will uphold the ACA, because the rulings in the lower courts have closely tracked the judges’ judicial ideology.  Conservatives tend to strike down the law; liberal judges tend to uphold it.  After this, it’s likely that the Virginia attorney general will take the case to the United States Supreme Court, where swing voter Justice Anthony Kennedy could make or break the fate of the ACA.

Acting U.S. solicitor general Neal Katyal, who is representing the Obama administration, said that the law targets “problems in the national healthcare system that states individually have proven unable to solve effectively.”  The legislation, intended to make healthcare coverage more affordable for Americans, also reduces the current uncompensated care that results in higher premiums for people who already have insurance.  “The Constitution grants Congress the power to regulate conduct that substantially affects interstate commerce,” Katyal wrote in his brief.  “The requirement that participants in the health care market have insurance to pay for the services they consume is thus a quintessential exercise of the commerce power.”

The ACA’s supporters maintain that the law falls within Congress’s power to regulate interstate economic activities.  Opponents claim that the ACA represents a dramatic expansion of the federal government’s authority under the Constitution’s commerce clause.  The law lets the government regulate economic activities and also the inactivity of those who might opt not to purchase health insurance.

“The purpose of health insurance is to pay for expenses incurred in the health care services market,” Katyal said in his brief.  “That some participants in the healthcare market may be ‘passive’ in the insurance market – in the sense that they may not currently have insurance – has no constitutional significance.”  Buying and selling health insurance is a national economic activity, according to Katyal.  “The modern health care system operates across state boundaries. Most health insurance is sold or administered by national or regional companies that operate interstate, and pays for medical supplies shipped in interstate commerce,” he said.

E. Duncan Getchell, Virginia’s solicitor general, argued in his brief that the federal healthcare reform law’s individual mandate clashes with a state law seeking to protect the right of Virginians to decide for themselves whether to buy health insurance or remain uninsured.  “Because the claimed power to order a citizen to purchase a good or service from another citizen has no principled limit, it violates the … limits of the commerce clause,” Getchell wrote.

“The fact that the government is sending the solicitor general of the United States to argue the case does reflect how important the government considers this case to be,” said Lisa Blatt, an appeals lawyer at Arnold & Porter LLP in Washington.  Typically, the U.S. solicitor general usually only argues cases before the U.S. Supreme Court.

Is the Affordable Care Act on a Fast Track to the Supreme Court?

Tuesday, March 29th, 2011

As Virginia seeks review of the Patient Protection and Affordable Care Act (ACA) by the United States Supreme Court, the move hasn’t impressed the Obama administration, which is urging the high court to not allow bypassing federal appeals courts.  The administration feels so strongly about a go-slow approach to sending the law to the Supreme Court for a decision on whether it is constitutional that the Department of Justice has filed a brief stating that they are in no hurry.  The brief notes that “Accordingly, granting certiorari before judgment in this case would not necessarily result in significantly accelerating the Court’s review of the constitutionality of the minimum coverage provision.”

The brief, filed on behalf of Health and Human Services Secretary Kathleen Sebelius, said “Especially given the imminent consideration of this case, there is no basis for short-circuiting the normal course of appellate review.”  The move was in reaction to Virginia’s Attorney General Ken Cuccinelli’s efforts to have its lawsuit bypass the appellate process and go directly to the Supreme Court.  Virginia has appealed regulatory amendments implemented by the healthcare reform law, arguing that federal government has surpassed its powers as defined in the Constitution.  Additionally, Cuccinelli says the Affordable Care Act is an issue of national importance that requires Supreme Court’s mandate.  The regulatory amendments include the compulsory purchase of health insurance by citizens, who must pay a penalty if they refuse to comply with the law.

Acting Solicitor General Neal Katyal wrote,  “there is no basis for short-circuiting the normal course of appellate review” and the Virginia case may lack sufficient standing.  Additionally, the case challenges the law’s mandate to buy health insurance, which does not go into effect until 2014.  In January, a Virginia federal struck down the mandate and the case now goes to the appeals court level.  In other challenges, a judge in Florida ruled against the whole law; three other federal judges have upheld the law.

Cuccinelli believes that the Supreme Court needs to act quickly to bring balance to differing lower court rulings on the healthcare reform law.  In the unlikely event that the Supreme Court agrees to hear Cuccinelli’s case, it probably would not be considered until the new term begins in the fall of 2011.  The Supreme Court has rarely agreed to hear cases prior to full review by the lower courts.

Judge Rules That Healthcare Law Must Be Implemented as it Heads to the Supreme Court

Tuesday, March 15th, 2011

The same Florida federal judge who declared President Barack Obama’s healthcare reform law unconstitutional ruled that states must continue implementing it as the case goes through the courts. U.S. District Judge Roger Vinson was responding to a request from administration attorneys who sought to ensure that states obey the law until their challenge to it is resolved.  Two other federal judges have upheld the law; one in Virginia has ruled against it.  The law’s ultimate fate is expected to be decided by the Supreme Court. In all, three federal judges have ruled that Congress possesses the authority under the Commerce Clause of the Constitution to enact the Patient Protection and Affordable Care Act (ACA).  The mandate requires that all Americans acquire healthcare coverage.  Two other federal judges have voted that the healthcare reform law is unconstitutional.

“It would be extremely disruptive and cause significant uncertainty” to halt implementation, Vinson wrote.  He added that if the federal government does not appeal within seven days, the states can consider the law invalid.  The Justice Department welcomed the stay and plans to file an appeal within the required time frame.  David Rivkin, a lawyer representing the 26 states challenging the law, said the decision “gets us exactly what we always wanted, which is an expeditious appellate process.”

“The battle lines have been drawn, the relevant case law marshaled and the legal arguments refined,” Vinson wrote.  “It is very important to everyone in this country that this case move forward.”  In some ways, the ruling was a victory for the Obama administration because it ended confusion over whether states should continue working to implement the law. “We appreciate the court’s recognition of the enormous disruption that would have resulted if implementation of the Affordable Care Act was abruptly halted,” Justice Department spokeswoman Tracy Schmaler said in a statement.  “We strongly disagree with the district court’s underlying ruling in this case and continue to believe — as three federal courts have found — that this law is constitutional.”

“It almost seems to be that he’s (Vinson) telling the 11th Circuit what they’re supposed to do,” said Tim Jost, a professor at Washington & Lee University School of Law.  “I’m not sure they’re going to take very kindly to that.”  The case was brought by 26 states and the National Federation of Independent Business NFIB), which hoped for an injunction clearly barring implementation of the reform law.  “The government’s attempts to stymie the judicial process are simply prolonging the uncertainty surrounding the law and do a disservice to the states, small-business owners and individuals who are seeking resolution,” said Karen Harned, executive director of the NFIB Small Business Legal Center.

In her “Right Turn” column in the Washington Post, blogger Jennifer Rubin writes that “When U.S. District Judge Roger Vinson issued his ruling finding ObamaCare unconstitutional, liberals seemed to develop a reading comprehension problem.  He plainly stated that the law is unconstitutional, but defenders of ObamaCare seemed not to grasp that the judge meant the government was supposed to follow that edict.  Can we imagine the howls that would have gone up had the Bush administration acted with such brazen dishonesty and contempt for a court?”

According to Rubin, “In sum, the administration’s feigned lack of understanding of the court’s earlier ruling, a position egged on by the liberal cheerleaders for ObamaCare, has only served to speed up the next level of review of ObamaCare’s constitutionality.  Moreover, for an administration promising to ‘depoliticize’ the administration of justice and to be faithful defenders of the rule of law, this episode shows the chasm between administration rhetoric and behavior.”