Health Care - CAC ACA Clips - March 15-29 2012 Updated

8/2/2019 Health Care - CAC ACA Clips - March 15-29 2012 Updated

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CONSTITUTIONAL ACCOUNTABILITY CENTER

AFFORDABLE CARE ACT CLIPS

MARCH 15‐29, 2012



1

VIDEO

1. “Legal challenges for health care case,” Special Report with Bret Baier, FOX News Channel, March

23, 2012: http://www.foxnews.com/on‐air/special‐report/index.html#/v/1526975559001/legal‐

challenges‐for‐health‐care‐case/?playlist_id=86927

2. “Supreme Court to tackle health care,” CNN, March 23, 20121,2:

http://www.cnn.com/video/#/video/bestoftv/2012/03/23/pkg‐bolduan‐health‐care‐scotus.cnn

(CAC at 01:33 ‐ 01:39)

3. Post‐argument briefing, C‐SPAN, March 26, 2012: http://www.theusconstitution.org/news/tv‐cacs‐

elizabeth‐wydra‐supreme‐court‐aca‐day‐1

4. “Wydra: SCOTUS Must Uphold ObamaCare,” FOX Business Channel, March 26, 2012:

http://video.foxbusiness.com/v/1531079310001/wydra‐scotus‐must‐uphold‐obamacare/

5. “Why the Individual Mandate is Reasonable,” FOX Business Channel, March 27, 2012:

http://video.foxsmallbusinesscenter.com/v/1532793920001/why‐the

‐individual

‐mandate

‐is

‐

reasonable/?playlist_id=87185

6. News Nation with Tamron Hall, MSNBC, March 27, 2012:

video.msnbc.msn.com/newsnation/46870818/

7. “Supreme Court Health Care Law: Justices Come Down Hard On The Mandate,” Huffington Post,

March 27, 2012: http://www.huffingtonpost.com/2012/03/27/supreme‐court‐health‐

care_n_1373469.html (CAC at 20:10 ‐ 22:15)

8. “NFIB: Throw Out Health‐Care Law,” FOX Business Channel, March 28, 2012:

http://video.foxbusiness.com/v/1534926574001/nfib‐throw

‐out

‐health

‐care

‐law

(CAC

at

00:36

‐

01:09)

9. “Supreme Court Hears Arguments Over Health Care Bill's Future,” NY1 (“New York One”), March 28,

2012: http://www.ny1.com/content/news_beats/political_news/158392/supreme‐court‐hears‐

arguments‐over‐health‐care‐bill‐s‐future (CAC at 01:26 ‐ 01:40)

1 Per Lexis, this clip was in CNN’s rotation at least six times: 1. CNN NEWSROOM 6:00 PM EST, March 25, 2012

Sunday; 2. CNN, THE SITUATION ROOM 6:00 PM EST, March 24, 2012 Saturday; 3. CNN NEWSROOM 3:00 PM EST,

March 24, 2012 Saturday; 4. CNN JOHN KING, USA 6:00 PM EST March 23, 2012 Friday; 5. CNN THE SITUATION

ROOM 4:00 PM EST, March 23, 2012 Friday; 6. CNN NEWSROOM 10:00 AM EST, March 23, 2012 Friday. 2 Also broadcast as part of local package at least on: KARE 11 NBC (Minneapolis/St. Paul, MN) News First 5:00 AM,

March 26, 2012 Monday. (Anticipate others.)



2

RADIO

1. “Thom Hartmann Radio Show,” March 26, 2012: http://www.thomhartmann.com/

2. “U Need 2 Know,” (South Carolina) March 26, 2012:

http://www.unconflictedsc.com/2012/03/round‐one.html

3. “Kate Delaney – America Tonight,” March 26, 2012: http://www.americatonight.net/

4. "Background Briefing with Ian Masters" KPFK‐FM, March 26, 2012:

http://ianmasters.com/content/march‐26‐supreme‐court‐litigator‐reports‐todays‐arguments‐

advocate‐single‐payer‐amicus‐brief

5. “The Bev Smith Show,” March 27, 2012: http://www.bevsmithtalks.com/

6. “The Bob Kincaid Show,” March 27, 2012: http://headon.headonradionetwork.com/

7. “U Need

2 Know,”

(South

Carolina)

March

27,

2012:

http://www.unconflictedsc.com/2012/03/round‐two.html

8. “Thom Hartmann Radio Show,” March 27, 2012: http://www.thomhartmann.com/

9. “Supreme Court's Medicaid Decision Could Reach Far Beyond Health Care,” NPR, March 28, 2012:

http://www.npr.org/player/v2/mediaPlayer.html?action=1&t=1&islist=false&id=149485784&m=149

512186 (LINK TO AUDIO)

10. “U Need 2 Know,” (South Carolina) March 28, 2012:

http://www.unconflictedsc.com/2012/03/round‐threereality‐sets‐in.html

11. “The Carl Wolfson Show,” KPOJ (Portland, OR) March 29, 2012:

http://www.620kpoj.com/pages/kpoj_mornings.html?article=9967141



3

PRINT

1. http://articles.latimes.com/2012/mar/18/nation/la‐na‐court‐healthcare‐20120318

Supreme Court to weigh key constitutional issues with healthcare law

Legal scholars

on

the

right

and

left

agree

the

case,

which

comes

before

the

court

in

a week,

is

momentous. Justices will decide on what limit the Constitution places on Congress' power.

March 18, 2012

Los Angeles Times [front page of Monday, March 19 edition]

By David G. Savage

Reporting from Washington — When the Supreme Court hears arguments on President Obama's

healthcare law, what will be at stake is not just whether Americans can be required to have health

insurance, but whether the Constitution puts any limit on Congress' power to regulate the economy.

Since 1936,

the

justices

have

not

struck

down

a major

federal

regulatory

law

on

the

grounds

that

Congress went too far. The court's forbearance on matters touching Congress' authority to regulate

commerce has allowed Washington's power to grow, to protect civil rights and the environment, to

ensure safer automobiles and drugs, and to help boost the wages and benefits of workers.

All the while, however, conservatives and business groups have insisted there must be a limit.

Otherwise, they say, an all‐powerful federal government would be free to write its own rules.

Such a limit — if the Constitution indeed sets one — is at the heart of the healthcare case that comes

before the court March 26.

Legal

scholars

on

the

right

and

the

left

see

the

case

as

momentous.

"It goes to who we are as a people and what kind of government we have," said Ilya Shapiro of the

libertarian Cato Institute.

The court "is at a crossroads," said Doug Kendall, president of the progressive Constitutional

Accountability Center. If the court "strikes down the law, we're back to the New Deal era with a

progressive president at war with a conservative court."

To President Obama and the Democrats in Congress, the need for the Patient Protection and Affordable

Care Act was obvious. Nearly 50 million Americans lack health insurance. When they go to a hospital,

the costs are borne by others, including the taxpayers. And all face a loss of insurance if they lose a job

or have

a serious

illness

or

other

preexisting

condition.

The only way to prevent those problems was to bring everyone into the system, Obama argued,

guaranteeing coverage for all, prohibiting insurance companies from excluding people they didn't want

to cover and requiring, in exchange, that everyone get insurance. Those who could not pay the full cost

would be offered subsidies.



4

Critics, however, say the "government mandate" to buy insurance goes too far. It crosses a line, they

say, from reasonable regulation of commerce to a dictate from Washington to engage in commerce.

"This reaches into the living room of a guy who is healthy and doesn't want to buy health insurance,"

said Paul D. Clement, the former George W. Bush administration solicitor general, who represents

Republican officials from 26 states. He will try to persuade a conservative‐leaning high court that it

should break with decades of precedent and void the entire law.

The Supreme Court, signaling the extraordinary nature of the case, agreed to hear six hours of

arguments over three days, rather than the usual single hour. The court agreed to also consider

Clement's claim that Congress exceeded the Constitution when it pressed the states to expand the

Medicaid program.

Progressives, not surprisingly, see the court's intervention as ominous. They say the Constitution created

a national government to "promote the general welfare." It did not authorize the court to veto laws that

regulate business and commerce in the public interest, they say.

The issue

also

poses

a dilemma

for

the

court's

conservative

majority:

Just

what

type

of

conservative

are

they? Do they seek to reimpose conservative principles on the two elected branches of government or

do they hew to the idea of a limited, restrained role for the courts?

Since at least the Ronald Reagan era, conservatives have argued that elected lawmakers, not unelected

judges, should decide the major issues of government. Chief Justice John G. Roberts Jr. echoed this

theme when he told senators during his confirmation hearings that he saw a modest role for judges,

more like an "umpire calling balls and strikes" than a star player.

As conservative Judge Laurence H. Silberman of the D.C. Circuit Court of Appeals wrote in upholding the

healthcare law in November, the Constitution left Congress "free to forge national solutions to national

problems."

Several other well‐known judicial conservatives have taken the same position, including J. Harvie

Wilkinson III of the U.S. 4th Circuit Court of Appeals in Richmond, Va., who wrote in a recent op‐ed

article that it was "tempting to shout states' rights when deeply flawed federal legislation is enacted, but

the momentary satisfactions of that exercise carry long‐term constitutional costs."

Other conservatives argue, however, that deference to the elected branches of government has gone

too far, allowing Congress and successive presidents to enlarge the federal role far beyond what the

Constitution intended.

#



5

2. http://www.medscape.com/viewarticle/760475

Supreme Court Oral Arguments on the ACA, Part 1: Wheat, Guns, and

Yes, Healthcare Reform

March 19,

2012

Medscape Medical News

By Robert Lowes

For years, many physicians have groused about what they call Big Government and its role in healthcare.

On March 26, the Supreme Court will take up that subject, and more, during oral arguments in the case

over the constitutionality of healthcare reform and, in particular, its requirement that individuals obtain

insurance coverage or else pay a penalty….

In light of these seemingly incongruent stances, Obama administration attorney Donald Verrilli Jr "will

have to

engage

in

a very

delicate

dance"

on

the

AIA

question,

said

Elizabeth

Wydra,

chief

counsel

for

the Constitutional Accountability Center, a progressive think tank and law firm in Washington, DC.

Verrilli, the government's solicitor general, "has to argue that the AIA does not apply to the penalty,

even though the mandate can be considered a tax law," Wydra told Medscape Medical News.

[…snip…]

If the Supreme Court were to agree with Long and throw out the ACA case because of the AIA, the

Obama administration could count that as a victory of sorts, said Wydra. A ruling that treats the

mandate penalty as a tax, she explained, buttresses the administration's argument that the mandate is

justified merely under the constitutional power of Congress to levy taxes. For that reason,

"conservatives are afraid of [the penalty] being ruled as a tax."

All the parties in the case, as well as physicians, consumers, and state legislatures, prefer immediate

closure on the ACA, however, said Wydra. "They'd rather know in June than 3 years from now."

[…snip…]

Elizabeth Wydra said she expects the Supreme Court justices to press administration attorney Donald

Verrilli about a limiting principle to its Commerce clause theory. However, the justices also are likely to

challenge the attorneys for the ACA opponents on a weakness in their position, she said. They assert

that the individual mandate errs in regulating commercial inactivity, yet where does the Constitution

speak of

activity

vs

inactivity?

"There is no textual support for that," Wydra said, noting that one federal appellate judge — a Reagan

appointee — who ruled in favor of the mandate reached the same conclusion.

#



6

3. http://www.medscape.com/viewarticle/760564

Supreme Court Oral Arguments on the ACA, Part 2: Medicaid Offers

You Can't Refuse, and Severability

March 20,

2012

Medscape Medical News

By Robert Lowes

Beginning next Monday, the Supreme Court will conduct 3 days of oral arguments in a landmark case

about a landmark law — the Affordable Care Act, the hotly contested blueprint for overhauling the

nation's healthcare system, or lack of a system.

The first day's arguments could be described as precautionary — dotting legal "i's," so to speak. They

center on whether the high court can review the ACA's constitutionality this year, or whether it must

wait until after the law's mandate for Americans to obtain health insurance coverage takes effect in

2014….

[…snip…]

Elizabeth Wydra, chief counsel for the Constitutional Accountability Center, a progressive think‐tank

and law firm in Washington, DC, believes the Obama administration enjoys the upper hand on the

severability issue in the Supreme Court case.

"There's a strong presumption in the court that congressional arguments are constitutional," said

Wydra, echoing Farr. "It's not the court's business to rewrite legislation.

"If

the

court

struck

down

the

mandate,

it

would

limit

the

impact

on

the

rest

of

the

law,"

Wydra

predicted.

A Case About Congressional Power, Not Healthcare

During the oral arguments on severability, Wydra expects the Supreme Court justices to question the

parties carefully about how the ACA is structured and how it is intended to work. However, the judges

will have more than healthcare policy on their minds.

The questions "are about understanding the law and identifying what is severable rather than judging its

wisdom," said Wydra.

[…snip…]

#



7

4. http://www.businessweek.com/news/2012‐03‐20/insurers‐at‐risk‐in‐challenge‐to‐health‐care‐law‐s‐

medicaid‐plan

Insurers at Risk in Challenge to Health Law’s Medicaid Plan March 20, 2012

Bloomberg/Business Week

By Amanda J. Crawford

A Supreme Court decision striking down the U.S. health‐care law’s expansion of Medicaid might expose

environmental and educational laws to legal challenges while hurting stocks that surged anticipating

more than $600 billion in new spending over the next decade.

In the case against President Barack Obama’s health‐system overhaul, to be heard by justices March 26‐

28, 26 states argue the plan to cover 17 million uninsured Americans by expanding the care program for

the poor is unconstitutional ‐‐ even though the federal government would pick up most of the tab.

The challenge to the program’s expansion has received less attention than the dispute over the

requirement that all Americans carry health insurance or face tax penalties. While a lower court upheld

the Medicaid plan even as it struck down the individual mandate, reversal might change the program for

good and also expose laws such as the Clean Air Act to the No Child Left Behind education law to judicial

challenge.

“If they buy the more fundamental claim by states that this is coercive, not only would that cast doubt

on the constitutionality of Medicaid as we know it, it would also cast doubt on a huge number of other

spending programs,” said I. Glenn Cohen, an assistant professor at Harvard Law School who wrote about

the case in the New England Journal of Medicine.

Managed‐Care Companies

Managed‐care companies with large Medicaid businesses, such as Centene Corp. (CNC) of St. Louis,

Missouri, have seen their stock prices more than double since March 2010 on the expectation that

states with rising caseloads will turn to them to help control program spending. An adverse decision

might affect those gains while also hurting hospitals, nursing homes and other health providers.

The decision by the Supreme Court to review the constitutionality of the Medicaid expansion came as

a surprise, said Elizabeth Wydra, chief counsel for the Washington‐based Constitutional Accountability

Center, who represents state lawmakers supporting the health‐care law. It was upheld by the 11th

Circuit Court of Appeals.

“The Medicaid

expansion

issue

is

the

real

sleeper

issue

of

the

health

‐care

challenge,”

Wydra

said

in

a telephone interview. “The states’ arguments have the potential to open Pandora’s Box. While they

only want to limit their argument here to Medicaid expansion in the Affordable Care Act, I think the

consequences of their argument are much more extreme than that.”

$627 Billion



8

The Congressional Budget Office projects that the expansion of Medicaid set to take effect in 2014 will

lead to $627 billion in new federal spending over the next 10 years.

“It is significantly more revenue than is currently in the system right now,” said Matt Barry, health‐care

analyst team leader for Bloomberg Government and author of a new study that looks at the impact on

businesses in states pressing the court challenge if the Medicaid expansion is halted. “If the Affordable

Care Act is struck down, which includes the Medicaid expansion, then there is going to be a lost business opportunity for managed care companies, hospitals, nursing homes and other providers.”

More than $207 billion in new federal spending from 2014‐2018, slightly more than half of the total

nationwide, will go to states that have challenged the health‐care law, the BGOV study found. Five of

the states ‐‐ Texas, Florida, Pennsylvania, Ohio and Georgia ‐‐account for more than half of that

spending.

Most to Gain

Managed‐care providers have the most to gain in the expansion ‐‐ and to lose if the Supreme Court

stops it.

In

the

litigant

states,

those

health

insurers

are

expected

to

gain

$46

billion

in

the

first

five

years

of the expansion. Investments that have occurred in preparation for the new law, such as Molina

Healthcare (MOH) Inc.’s $135 million acquisition of Unisys Corporation (UIS)’s health information

management business in 2010, may no longer make financial sense if it is struck down, according to the

BGOV study.

Since March 1, 2010, shares of Centene have surged 146 percent; Wellcare Health Plans inc. of Tampa,

Florida, jumped 145 percent; Amerigroup Corp. (AGP) of Virginia Beach, Virginia, increased 134 percent;

and Molina Healthcare of Long Beach, California, rose 122 percent.

“They are the most vulnerable,” Paul Heldman, senior health policy analyst for Potomac Research Group

in

Washington,

said

in

a

telephone

interview.

If

the

Supreme

Court

halted

the

new

spending,

“it

would

be a big surprise to Wall Street.”

Health Providers

Hospitals, nursing homes and other providers also are expected to be helped by the Medicaid

expansion. Depending on how the court rules, a decision against the expansion could be a double‐

whammy if reductions in Medicaid and Medicare payments and other cuts that are part of the law are

left intact, Heldman said.

The federal government says states’ participation in Medicaid is voluntary ‐‐ if they don’t like the

requirements to expand coverage they can opt out of Medicaid altogether. The states argue that the

federal government

is

“making

states

an

offer

they

could

not

refuse”

and

that

dropping

out

of

the

program that is in place in all 50 states and losing federal funding they now get is not practical. They are

being coerced to accede to onerous new federal demands that will lead to significant outlays of state

cash, they say.

The U.S. would pay the full cost of the Medicaid expansion in the first two years, a share that would

decline gradually to 90 percent in 2020 and thereafter. Still, Florida, which is leading the states’

challenge to the law, estimates its share of Medicaid spending will increase by $1 billion annually by the



9

end of the decade. Other states, such as New Hampshire, have said they will save money under the new

law.

‘Fiscally Unreasonable’

Doug Holtz‐Eakin, president of the American Action Forum and former director of the CBO, thinks the

federal government’s demands on the states are “fiscally unreasonable” but he doesn’t believe justices will strike down the Medicaid expansion ‐‐ even though he has joined other economists in urging them

to do so.

If they did, the ruling “would be very important and would change dramatically the federal‐state

relationships,” he said.

At the least, a ruling against the Affordable Care Act might leave Medicaid as it exists today. It could also

provide the political push to do what Holtz‐Eakin and many Republicans have called for: significant

changes to health‐care funding that give states more flexibility and contain costs.

“This is

an

enormous

fiscal

and

regulatory

initiative

and

has

enormous

implications

for

all

the

participants in the health care sectors,” Holtz‐Eakin said. “Which way the winds blow on this matters a

lot.”

#



10

5. http://www.latimes.com/news/nationworld/nation/la‐na‐court‐leave‐20120321,0,7754047.story

Supreme Court voids part of medical leave act The Supreme Court rules 5 to 4 that state workers who are denied unpaid sick leave, as required

by the Family and Medical Leave Act of 1993, cannot sue the states.

March 20, 2012

Los Angeles Times

By David G. Savage

State workers who are denied unpaid sick leave required by federal law cannot sue the states, the

Supreme Court said in a victory for states' rights that some liberal advocates saw as a bad omen for

President Obama's healthcare law.

The 5‐4 decision is a setback for millions of employees of state agencies and state colleges, and it voided

in part a provision in the Family and Medical Leave Act of 1993. Among other things the act said that

employees had

a right

to

take

up

to

12

weeks

of

unpaid

leave

to

recover

from

an

illness

or

childbirth.

The rights of employees of private companies are unchanged by the ruling.

In this case, Daniel Coleman was fired from his job with the Maryland Court of Appeals after his request

for sick leave was denied. He sued for $1.1 million in damages, alleging that his rights were violated

under the federal Family and Medical Leave Act.

The National Partnership for Women and Families condemned the high court's decision as "appalling

and dangerous." It "effectively puts state workers and their families at risk when workers become

pregnant or illness strikes," said Debra Ness, the group's president.

The court's

majority

minimized

the

effects,

however,

noting

that

most

state

and

local

employees

are

given some paid sick leave.

The medical leave act also provides for unpaid leave to deal with a family medical emergency, but in

Tuesday's decision, the court's conservative majority focused on the personal medical leave provision.

It said lawsuits by state employees permitted under the law would violate the constitutional rule that

the "states, as sovereigns, are immune from suits for damages." Use of this rule, which was devised by

the Rehnquist court in the mid‐1990s, had receded in recent years. It reappears in the opinion by Justice

Anthony M. Kennedy, just days before the court hears the 26‐state challenge to Obama's healthcare

law.

On March 28, on the third day of oral arguments on different aspects of the healthcare law, lawyers for

Florida and other states will make their case that the planned expansion of the Medicaid program for

low‐income people violates states' rights because it puts an undue burden on the states.

That was the argument that prevailed in the sick leave case. Doug Kendall, president of the liberal

Constitutional Accountability Center, noted the similarity and said that the "majority's failure to give

due deference to Congress' express constitutional powers is troubling."



11

Justice Ruth Bader Ginsburg delivered her dissent in the courtroom. She said Congress had decided that

"the best way to protect women against losing their jobs because of pregnancy or childbirth" was to give

them a right to take unpaid sick leave for 12 weeks. The law gave equal rights to men, she said.

Ginsburg noted that the Labor Department could still sue state agencies that repeatedly violated its

provisions. But the court's ruling bars suits from individual employees if they are fired for having taken

an extended personal medical leave. They can sue if they are fired for taking family leave.

The Constitution makes no mention of states having a "sovereign immunity" if they violate federal laws,

but the Rehnquist court said it was an implicit principle dating to the 18th century. Beginning in 1996,

the court handed down a series of 5‐4 decisions that shielded states from various federal laws.

But in 2003, to the surprise of many, Chief Justice William H. Rehnquist wrote a 6‐3 decision upholding

the Family and Medical Leave Act as it applies to family but not personal leave. He reasoned that

Congress had acted to end sex discrimination against female workers, who because of pregnancy leave

were more likely to lose their jobs. The three dissenters were Justices Antonio Scalia, Clarence Thomas

and Kennedy.

The issue returned with the Coleman case.

Kennedy, in the majority opinion, dismissed the suit and said that Congress could not subject states to

suits over personal sick leave because it had nothing to do with remedying a pattern of sex

discrimination. Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. agreed and were joined by

Thomas and Scalia.

#



12

6. http://www.csmonitor.com/USA/Justice/2012/0320/Does‐Supreme‐Court‐decision‐on‐sick‐leave‐

hint‐at‐health‐care‐law‐ruling

Does Supreme Court decision on sick leave hint at health‐care law

ruling? The

sick

leave

provision

and

health

‐care

law

rely

on

different

sections

of

the

Constitution,

but

Supreme Court ‐watchers noted with interest that the justices found Congress had overstepped

its authority.

March 20, 2012

Christian Science Monitor

By Warren Richey

WASHINGTON – The US Supreme Court ruled Tuesday that Congress overstepped its authority in passing

a federal law that authorized state employees to sue their state employer for sick leave.

In a decision

that

sharply

divided

the

court,

a four

‐ justice

plurality

said

Tuesday

that

federal

lawmakers

had failed to identify enough evidence of discrimination to justify a key part of the 1993 Family and

Medical Leave Act (FMLA).

The case is Coleman v. Court of Appeals of Maryland (10‐1016).

In all, five justices agreed with the outcome, siding with the State of Maryland and against an employee

who sought to sue the state for damages over Maryland’s refusal to grant unpaid sick time under the

federal law.

How much do you know about the US Constitution? A quiz.

The decision comes a week before the high court is set to hear oral arguments over whether Congress

overstepped its authority when it passed the Patient Protection and Affordable Care Act.

While the health‐care law and family leave act are authorized under different sections of the

Constitution, many legal analysts are questioning whether the court’s conservative wing has the

stomach to invalidate an act of Congress widely viewed as President Obama’s most significant domestic

policy achievement.

The FMLA decision was authored by Justice Anthony Kennedy, who is considered by many analysts as

the conservative justice most likely to join the court’s liberal wing in upholding the Affordable Care Act.

On Tuesday, Justice Kennedy sided with the conservatives.

It was a development that did not go unnoted.

“On the cusp of the historic argument on the powers of the federal government in health care, and

with challenges to the Voting Rights Act hurtling towards the court, the Coleman majority’s failure to

give due deference to Congress’ express constitutional powers is troubling,” Doug Kendall, president

of the liberal Constitutional Accountability Center, said in a statement.



13

The decision leaves FMLA in place, but undercuts an employee’s ability to sue his or her employer for

damages when the employer is a state government.

The key question in the case was whether Congress had identified a significant pattern of discrimination

that it was seeking to rectify via FMLA’s self ‐care provision.

Maryland officials argued that Congress failed to follow the proper constitutional procedures when it

enacted the federal leave law.

Five members of the court agreed with Maryland that Congress exceeded its authority in passing the

self ‐care provision.

#



14

7. http://www.cnn.com/2012/03/23/politics/scotus‐health‐care‐preview3

Justices to tackle epic debate over constitutionality of health care

reform

[March 23, 2012] updated March 25, 2012

By Bill

Mears

CNN.com (print story accompanies video above)

Washington (CNN) ‐‐ Most of us go about our daily business never thinking about the U.S. Supreme

Court or the cases it decides. But sometimes, it gets a case so big ‐‐ and could affect your life so much ‐‐

you simply have to take notice. This week is one of those times.

The highest court in the land is preparing to tackle perhaps the most important appeals to reach it in

more than a decade: the massive health care reform legislation championed by President Barack

Obama.

The court will soon hear six hours of oral arguments over three days on the law's constitutionality ‐‐ and

your health and your finances could be on the line. Their eventual rulings in an election year will not

only guide how every American receives medical care but would also establish precedent‐setting

boundaries of government regulation over a range of social areas.

"The implications in the health care litigation are impossible to overstate," said Thomas Goldstein, a

prominent Washington attorney and publisher of SCOTUSblog.com. "It has tremendous consequences

for President Obama's re‐election because it's a signature achievement. But in terms of law, this case is

really going to decide how much power Congress has to regulate spheres that we've often thought of as

the jobs of the states or of just individuals."

A century of federal efforts to offer universal health care culminated with the 2010 passage of the

Patient Protection and Affordable Care Act. After months of bare‐knuckled fights over politics and

policy, the legislation signed by Obama reached 2,700 pages, nine major sections and 450 some

provisions.

The partisan debate around such a sweeping piece of legislation has encompassed traditional hot‐

button topics: abortion and contraception funding, state and individual rights, federal deficits, end‐of ‐

life‐care and the overall economy. The high court now gets the final word.

"These issues are really central to whether the federal government can regulate anything it wants to, or

whether there

are

some

things

that

only

the

state

governments

can

regulate,"

said

Paul

Clement,

the

attorney who will argue against the law, on behalf of a coalition of 26 states.

On the other side are progressives who back the Obama administration and its congressional

supporters.

3 Google News search on 3/29 shows at least 86 reprints of this article that include our quotes: http://is.gd/hAUsuf



15

"Congress thought it necessary to regulate the nearly 20% of our nation's economy that makes up the

health care industry and to make sure insurance companies did not discriminate against people with

pre‐existing conditions, for example," said Elizabeth Wydra, chief counsel at the Constitutional

Accountability Center. "That is squarely within Congress' authority."

Debate comes

down

to

four

key

issues

Despite its complexity, the high court has narrowed its focus to just four key issues:

One: Constitutionality of the individual mandate (also known as the "minimum coverage" requirement),

the key funding provision.

Two: Whether the individual mandate is a "tax," thereby limiting authority of the courts to immediately

decide the mandate question.

Three: Whether other parts of the law can survive if the mandate is struck down.

Four: Federal vs. state conflict over expansion of the cooperative Medicaid program.

It is the "individual mandate" that has sparked the most controversy. It requires nearly every American

to purchase some level of insurance or face a tax penalty of up to about $700 a year.

Typical of the ideological divide, the opposing sides do not even agree on what the individual mandate

was designed to accomplish. Supporters see it a way of spreading health care costs to a larger pool of

individuals, ensuring affordable, quality medical care. They say regulating commerce and the economy

has long been a federal prerogative.

The Justice Department will tell the high court that since every American will need medical care at some

point in their lives, individuals do not "choose" to participate in the health care market. Federal officials

cite 2008 figures of $43 billion in uncompensated costs from the millions of uninsured people who

receive health services, costs that are shifted to insurance companies and passed on to consumers.

But opponents see a fundamental constitutional violation, an intrusion into citizens' personal lives,

forcing Americans to purchase a commercial product they might not want or need. The states equate

such a requirement to a burdensome regulation of "inactivity."

One federal appeals court has found the act unconstitutional. Two others have has said it is a proper

exercise

of

congressional

mandate.

A

third

court

has

ruled

against

the

states

on

technical

grounds,

saying local officials lack authority to even go into to court and argue the individual mandate issue.

Twenty‐eight states and countless individuals and groups have sued the administration.

What the reform is designed to do

Health care reform, a top Democratic priority since the Truman administration, was passed by the

previous Congress in a series of close party‐line votes. Obama signed the act into law in March 2010.



16

Among other things, the measure was designed to help millions of uninsured and underinsured

Americans receive adequate and affordable health care through a series of government‐imposed

mandates and subsidies. The federal government will tell the court that 45 million Americans last year

lacked health insurance, roughly 15% of the country's population.

Critics have equated the measure to socialized medicine, fearing that a bloated government

bureaucracy will result in higher taxes and diminished health care services.

Opponents derisively labeled the measure "Obamacare." Republican leaders, who captured the House

of Representatives in the 2010 midterm elections, have vowed to overturn or severely trim the law. All

the major GOP candidates for president have echoed similar calls, especially in their TV campaign ads.

That has concerned some liberal legal analysts.

"It seems what the conservative state attorneys general and the governors were trying to do was seek

a do‐over of the act in the courts, to achieve what they couldn't in the legislature. And it really has

become a bit

of

political

theater,"

says

Wydra.

"If

the

Supreme

Court

and

especially

some

of

the

conservative justices uphold the mandate, and deliver the message to the tea party that their

constitutional vision is fundamentally flawed, that makes it much harder for tea party candidates and

their supporters to have their constitutional theories taken seriously by the American people."

But the states worry how far the federal government would go in the future, all in the name of

regulating "commerce," if the high court found the law constitutional.

"I think about just a couple of years ago when the automobile industry was suffering, and Congress said:

we're going to give people incentives to buy new cars," said Clement. "Well, it would have been even

more effective and even better for the car industry if Congress had just said: if you make more than

$100,000, you need to buy a new car. They haven't done that, maybe it's self ‐restraint, maybe it's

because the [sweeping] power really doesn't exist. That's really what the court is going to decide."

How the justices could rule

The entire court of nine justices will hear the case, despite separate calls for Clarence Thomas and Elena

Kagan to recuse. They will have several options before them when issuing opinions in these cases.

They could separately strike down or uphold the individual mandate and Medicaid provisions and rule

whether the entire law must be scrapped. Or they could declare a legal "time‐out"‐‐ concluding the

constitutional

questions

must

be

postponed

until

the

major

provisions

go

into

effect

in

2014,

when

any

real "harm" from the financial mandates would presumably be felt.

The opportunity to rule on a landmark case brings with it precedent‐setting opportunities to either

expand or deflate not only the power of Congress and the executive but also the judiciary's own prestige

and authority. In some ways, it is a perilous path, since the courts have increasingly become a political

football.



17

"We're in a little bit of a political death spiral for the Supreme Court, as ideologues on the left and right

attack justices with whom they disagree, maybe decreasing the public's confidence in the Supreme

Court," said Scotusblog.com's Goldstein. "And as they take up health care, abortion cases, immigration ‐‐

all of those issues ‐‐ there are going to be more excuses to attack the justices."

So expect

nine

unelected

judges

and

the

tricky

issues

such

as

health

care

they

confront

to

be

major

talking points in this year's state and federal elections. Their votes could ultimately decide whom

Americans choose on Election Day 2012.

"Our job on the court is to decide ‐‐ and control our stress," Justice Stephen Breyer told CNN a couple of

years ago while discussing how to manage ‐‐ personally and professionally ‐‐ the biggest, most politically

explosive Supreme Court appeals. "Keep yourself under control. And do your best on the decision."

That's wellness advice that could serve the nine‐member bench ‐‐ and anyone passionately folllowing

the case ‐‐ in the days to come.

#



18

8. http://www.politico.com/news/stories/0312/74429.html

How the health case went mainstream

March 25, 2012

POLITICO

By Josh

Gerstein

When President Barack Obama signed the health care bill two years ago, the legal challenges to the law

were widely belittled as long shots — at best.

But as the cases head to the Supreme Court this week, what looked to many like far‐out legal arguments

to undo “Obamacare” don’t seem so zany anymore.

“If you don’t like it, repeal it or amend it. But don’t ask the courts to do the job for you, because they

won’t,” Harvard Law professor Charles Fried, who served as solicitor general in the Reagan

administration, told Fox News’s Greta Van Susteren in April 2010.

Pressed on whether he might be wrong, Fried replied: “Well, I suppose I could. But I’ll tell you what, I

would be happy to come on this program and eat a hat which I bought in Australia last month made of

kangaroo skin.”

Fried’s offer was extreme, but his skepticism wasn’t. Many legal scholars, including respected

conservatives, pooh‐poohed the idea that the courts might actually strike down the law or the individual

mandate requiring most Americans to get health insurance or pay a fine.

Yet on Monday, three days of oral arguments about the law begin at the high court — the most time

justices have devoted to a single law since 1966.

The challengers’

journey

from

the

near

‐fringe

of

legal

thought

to

coming

within

striking

distance

of

knocking out Obama’s signature legislative achievement has coupled an intense legal assault with a

communications drive to convince elites and the public that the law violates the Constitution.

“Once the Supreme Court grants review of the case and sets six hours of arguments over three days, it

becomes a blockbuster case where, either way, there’s going to be a landmark ruling,” said Doug

Kendall of the Constitutional Accountability Center, a liberal legal group.

“Most people think the government is likely to win more than five votes, but the arguments that

seemed off the wall now seem on the wall, seem plausible and, for some people, even persuasive,” said

Neil Siegel, a Duke law professor who has written extensively in support of the law.

For most of 2009, as Congress began to draft and debate the health care bill, the individual mandate

drew little criticism — let alone a sustained argument that it would be unconstitutional.

“The debate about the individual mandate did not even come up until very late in the process of the bill

itself,” said Neera Tanden, a key staffer on the administration’s health care team during the passage of

the law. “It was a Republican idea. … I was looking for Republican opposition to the individual mandate,

but the first letter they wrote on the bill was just about costs and the public option.”



19

Tanden, now president of the liberal Center for American Progress, attributes the initial wave of attacks

on the law’s constitutionality to the rise of the tea party movement in the summer of 2009 and to

libertarian legal scholars looking to rein in Congress’s power.

“There was a strategy of far‐right thinkers to fundamentally relitigate the meaning of the Commerce

Clause,” said Tanden, referring to the constitutional provision allowing Congress to regulate commerce “among the several states.”

The first big steps in the legal campaign against the law were a pair of op‐eds in The Washington Post

and The Wall Street Journal in August and September 2009, authored by former Justice Department

officials David Rivkin and Lee Casey.

“The federal government does not have the power to regulate Americans simply because they are

there,” Rivkin and Casey declared in the Post.

“Such a mandate … would expand the federal government’s authority over individual Americans to an

unprecedented degree.

It

is

also

profoundly

unconstitutional,”

the

pair

wrote

in

the

Journal.

In an interview, Rivkin said the crusade was a lonely one at the outset.

“Lee and I were the only people talking about it. … Nobody else was interested in this. [House Speaker

Nancy] Pelosi was asked about it and answered, ‘Are you kidding me?’” Rivkin noted. “There were no

hearings in the House or Senate Judiciary Committees on whether this was constitutional. … Nothing like

that happened.”

Indeed, around the time that the op‐eds appeared, several Republican senators, Olympia Snowe of

Maine, Mike Enzi of Wyoming and Chuck Grassley of Iowa, were part of a so‐called “gang of six” trying

to

craft

bipartisan

health

care

reform

legislation.

News

stories

from

the

time

quote

them

complaining

about the cost of Democratic proposals and the implications of a government‐run insurance program,

but there is little indication they objected to the basic premise of the individual mandate.

Sen. Orrin Hatch (R‐Utah), who supported the individual mandate in the 1990s, did list it among

concerns he had when he quit bipartisan talks on the health bill in August 2009.

Then, in December 2009, The Heritage Foundation released an influential legal memo, calling the

mandate “unprecedented and unconstitutional” — even though the conservative think tank was a key

promoter of the idea in the late 1980s and 1990s.

A co‐author of the Heritage legal memo, Randy Barnett of Georgetown University law school, said he

was not

surprised

that

the

constitutional

question

was

slow

to

gain

traction

in

Congress.

“I don’t think I’d view Republicans in Congress as the touchstone of the constitutionality of any

particular issue. The fact that Republicans in Congress may have missed a constitutional problem

doesn’t keep me up at night thinking I must be wrong,” Barnett said.

However, Barnett noted that in December 2009, Sens. Jim DeMint (R‐S.C.) and John Ensign (R‐Nev.)

offered an unsuccessful point of order on the Senate floor objecting to the mandate as unconstitutional.



20

After the health care bill was signed into law by Obama in March 2010, a flurry of lawsuits were filed.

One of the challenges, led by Florida, quickly signed up 25 state attorneys general as plaintiffs.

But the suits got little respect in the legal community.

“In my view, there is a less than 1 percent chance that the courts will invalidate the individual mandate,” law professor and prominent libertarian blogger Orin Kerr of George Washington University told the Los

Angeles Times days after Obama signed the legislation.

That sentiment began to change in December 2010, when Richmond‐based U.S. District Court Judge

Henry Hudson became the first judge to rule the mandate unconstitutional.

“A huge inflection point was Judge Henry Hudson’s ruling in Virginia,” Barnett said. He added that the

day of the decision he got an email from a key legal thinker on the left saying, “As of this morning, your

theory is officially not frivolous anymore.”

Hudson’s ruling

striking

down

the

law

got

huge

press

coverage

—

to

the

chagrin

of

Obama

administration officials, a lot more attention than two earlier rulings from judges who upheld the law.

Similarly, the first federal appeals court ruling against the law — the 11th Circuit’s decision in August

2011 — produced huge headlines, even as the 6th Circuit’s and D.C. Circuit’s decisions in favor of the

law drew less notice.

Talk that the law is unconstitutional also has grown stronger in the public eye because the

administration’s defense of Obama’s signature legislative achievement has been lackluster outside the

courts. Officials have cranked out blog posts and op‐eds highlighting popular aspects of the legislation,

but Obama rarely raises the subject during public events, and instead focuses on jobs and the economy.

Vice

President

Joe

Biden

delivered

a

speech

Friday

on

health

insurance

—

but

said

virtually

nothing

about the health law and concentrated on arguing that Republicans pose a threat to Medicare.

On Tuesday, when the justices will hear key arguments against the mandate, Obama will be on Air Force

One, returning from an international nuclear summit in South Korea.

The GOP presidential candidates, by contrast, have pilloried the mandate during speeches and nationally

televised debates, calling for a repeal of the health care law.

Mitt Romney declared that it’s “wrong for health care. It’s wrong for the American people. It’s

unconstitutional.” Newt Gingrich labeled it “clearly unconstitutional.” And Rick Santorum said that

“people in the White House … think this is a normal course to run over the Constitution to do whatever

they want

to

do.”

Still, the legal campaign against the law has hit some bumps. When conservatives such as 6th Circuit

Judge Jeffrey Sutton, a former clerk to Justice Antonin Scalia, and D.C. Circuit Judge Laurence Silberman

voted to uphold the law, legal scholars took notice — and many felt the drive to undo the law lost

steam.



21

“I actually think the legal challenges hit a high point early on … and have since waned,” said Pam Karlan,

a Stanford law professor who contends the law is constitutional.

Kerr said last week that he’d slide his prediction of a 1 percent chance of success for the challengers to

about 10 percent now.

“It became kind of a political cause on the Republican side. … Over time, arguments that were initially thought to be kind of off ‐the‐wall have become politically mainstream,” Kerr said. “That has really

changed the ground underlying the case. It is still an uphill battle.”

Fried said in an interview last week that he’s standing by his offer to eat his hat if the law gets

overturned. But he wasn’t sounding quite so confident.

“I don’t think legal academics, left, right or center, think the argument has gotten any better, but in

terms of the possibility of what might happen, I do think people are perhaps thinking” that the lower‐

court rulings suggest the challengers have a chance, Fried said.

Another prominent

legal

figure

who

dismissed

the

legal

arguments

against

the

law

at

the

outset

said

last

week he remains unimpressed.

“You know how they say, ‘People were saying it’s frivolous, and they’re not saying that anymore’?”

Walter Dellinger, an acting solicitor general in the Clinton administration, asked in an interview. “Well,

I’m still saying it’s frivolous.”

#



22

9. http://www.law.com/jsp/nlj/legaltimes/PubArticleLT.jsp?id=1202546742621&The_sleeper_issue

The sleeper issue Challengers: Medicaid expansion is coercive

March 26,

2012

The National Law Journal

By Tony Mauro

EDITOR'S NOTE: The U.S. Supreme Court has agreed to consider four key issues — jurisdiction, individual

mandate, severability and Medicaid expansion — as it reviews the constitutionality of the Affordable

Care Act. In Part IV of our focus on these issues, we examine arguments for and against Medicaid

expansion.

The Medicaid argument is last, but not least.

Late

on

the

morning

of

March

28,

in

the

final

segment

of

the

Court's

three‐

day

examination

of

the

Affordable Care Act, the justices will consider what many call the "sleeper" issue of the entire litigation:

whether the statute, with its promise of large subsidies for the states, unduly coerces them into

accepting a massive expansion of Medicaid coverage tailored to fit new federal requirements.

The law would extend Medicaid benefits over time to an estimated 16 million nonelderly, nondisabled

people who have no health insurance now and whose incomes are less than 133 percent of the federal

poverty level. "It is an incredibly important part of the law for the people we serve," said Jane Perkins,

legal director of the National Health Law Program, which advocates for health coverage for the poor.

But by promising to underwrite 100 percent of the states' added costs for the expansion, at least

through 2016, challengers say the law amounts to a "take it or else" offer that states cannot refuse —

rendering it

so

coercive

that

it

subverts

the

power

of

states

and

oversteps

the

spending

power

of

Congress.

"A spending power without limits would be tantamount to a federal government without limits," wrote

Paul Clement of the Bancroft firm in Wash‐ington in his brief on the Medicaid issue on behalf of 26

states. He will argue against Solicitor General Donald Verrilli Jr. on the issue Wednesday.

The inclusion of the Medicaid issue on the Supreme Court's docket has triggered speculation on both

sides about the Court's intentions, and more than a little nervousness among supporters of the statute.

Only one appeals court, the U.S. Court of Appeals for the 11th Circuit, ruled on the Medicaid issue —

upholding the

law

—

so

there

was

no

circuit

split

crying

out

to

be

resolved.

The Court's decision to take up the Medicaid issue was an "unsettling surprise," said Doug Kendall,

president of the Constitutional Accountability Center, which filed a brief in favor of the Medicaid

expansion for a group of legislators from all 50 states. If the Court accepts Clement's invitation to

throw out the Medicaid part of the law, the entire statute could be threatened, Kendall said, making

the March 28 argument possibly the one that "matters the most."



23

'WIDESPREAD CONCERN'

Some supporters of the law worry that the Court took on the Medicaid issue to protect its flank. One

theory has it that if the Court is aiming to strike down the individual mandate, the linchpin of the law, it

could have decided to review the Medicaid segment in order to uphold it, preserving a semblance of

compromise. On the other hand, the Court could uphold the individual mandate and yet cripple the law

by striking down the Medicaid expansion, leaving millions of intended beneficiaries out in the cold.

"There is very widespread concern" about what would happen if the Medicaid segment of the law is

struck down, said University of Michigan Law School professor Samuel Bagenstos, who filed a brief that

spells out the range of federal aid programs that would be in jeopardy if the Medicaid expansion is

struck down. "It would be a very radical decision that would really put at risk the entire edifice of

cooperative federal‐state programs."

O'Melveny & Myers partner Walter Dellinger, a supporter of the law, said a decision striking down the

Medicaid expansion would "fundamentally alter judicial review," injecting the Court into policy decisions

that should be left to Congress.

If the Medicaid provisions fall, Dellin‐ger said at a recent Center for American Progress briefing, "You

might as well send the keys across the street [from the Capitol] to the Supreme Court and say, 'The

policy judgments are yours.' "

In the view of the Obama administration, the Medicaid expansion is not qualitatively different from

changes the government has made many times since the federal‐state program launched in 1965.

"From the outset, Congress specifically reserved the right to alter, amend or repeal any provision" of the

law, Verrilli asserts in his brief.

States

know

that

strings

are

attached

to

the

federal

money

provided

to

fund

Medicaid

programs

at

the

state level, and also know that they can walk away from the program if they want to, the law's

supporters say.

Kendall added that there is nothing wrong or surprising about Congress making its offer to the states

so generous that states will find it hard not to participate.

AN IGNORED QUESTION

So far, the Supreme Court has never found a condition on federal funding to be excessively coercive of

the states. It has largely ignored the question, ruling on it only twice: in 1937 and then again in 1987, 50

years later.

In both cases, the Court upheld strings attached to federal funding, though both times justices also said

there could be an undefined point at which federal pressure could turn into unconstitutional

compulsion.

That point was reached and exceeded with passage of the Affordable Care Act, its critics say. "If the

ACA's expansion of Medicaid does not surpass that limit, then no act of Congress ever will," Clement

asserts in his brief.



24

Unlike previous changes to Medicaid, he said, the new law threatens states with the loss of all federal

Medicaid funding if they don't go along with the expanded coverage mandated by the new law. The law

offers no alternative for needy residents of states that refuse the federal government's offer, Clement

said, because "Congress knew that no state could or would opt out."

According to a brief by the Center for Constitutional Jurisprudence, if Califor‐nia, for example, does not go along with the Medicaid expansion, it would stand to lose more than $25 billion in federal funding —

one‐quarter of its general revenue budget.

In the 1987 South Dakota v. Dole ruling, by contrast, only 5 percent of federal highway funding was at

stake if states refused to set their legal drinking age at 21.

There is something "deeply troubling," the brief asserts, about a federal program that can take over

entire segments of state power.

Not all states buy into the coercion argument advanced by Clement. "Con‐gress has not overstepped its

‐authority

or

strong

‐armed

the

states,"

argues

a brief

filed

by

13

states

that

support

the

Medicaid

expansion. Medicaid remains a "cooperative federalist program that is functioning just as it should," the

brief claims, adding that, under the new law, states that don't go along with the Medicaid expansion

won't automatically lose all their federal funding. Instead, the secretary of the Department of Health

and Human Services has the discretion to withhold some or all of the Medicaid funding for holdout

states.

Meanwhile, several groups are telling the Supreme Court that real people will be affected by how the

justices deal with the lofty federalism principles at issue in the Medicaid dispute.

A brief filed by the National Minority AIDS Council and other HIV advocacy groups asserts that most

uninsured

low‐

income

people

with

HIV

are

not

eligible

for

Medicaid.

Upholding

the

Medicaid

expansion,

the brief says, would make "critical treatment available" to those individuals for the first time.

#



25

10. http://www.latimes.com/news/politics/la‐pn‐supreme‐court‐healthcare‐20120325,0,3562084.story

With healthcare law at stake, Supreme Court rolls up sleeves March 26, 2012

Los Angeles Times [also on front page of Idaho Statesman]

By David

G.

Savage

A Republican‐led challenge to the Democrats' most ambitious social legislation in a generation goes

before the Supreme Court on Monday, with President Obama's healthcare law hanging in the balance.

The court's ruling, expected by the end of June, may decide whether the Constitution puts any limit on

Congress' power to regulate not just healthcare, but the entire economy.

The arguments begin with a technical discussion of whether the proposed penalty for not buying health

insurance amounts to a tax. If the justices find that it is, under an old law they may have to postpone

ruling on most of the issues until after the penalty goes into effect in 2014.

On Tuesday, the justices will get to the heart of the matter, debating whether Congress has the

authority to make people purchase a product: health insurance.

On Wednesday, they will talk about whether the rest of the law can stand on its own even if the

insurance mandate is struck down, and the separate issue of whether the federal government’s plan to

fund a massive expansion of state Medicaid programs violates states’ rights under the Constitution.

Since 1936, the justices have not struck down a major federal regulatory law on the grounds that

Congress went too far. The court's forbearance on matters touching Congress' authority to regulate

commerce has allowed Washington's power to grow, to protect civil rights and the environment, to

ensure safer automobiles and drugs, and to help boost the wages and benefits of workers.

All the while, however, conservatives and business groups have insisted there must be a limit.

Otherwise, they say, an all‐powerful federal government would be free to write its own rules.

Such a limit ‐‐ if the Constitution indeed sets one ‐‐ is at the heart of the healthcare case.

Legal scholars on the right and the left see the case as momentous.

"It goes to who we are as a people and what kind of government we have," said Ilya Shapiro of the

libertarian Cato Institute.

The court

"is

at

a crossroads,"

said

Doug

Kendall,

president

of

the

progressive

Constitutional

Accountability Center. If the court "strikes down the law, we're back to the New Deal era with a

progressive president at war with a conservative court."

To Obama and the Democrats in Congress, the need for the Patient Protection and Affordable Care Act

was obvious. Nearly 50 million Americans lack health insurance. When they go to hospitals, the costs are

borne by others, including the taxpayers. And all face a loss of insurance if they lose jobs or have serious

illnesses or other preexisting conditions.



26

The only way to prevent those problems was to bring everyone into the system, Obama argued,

guaranteeing coverage for all, prohibiting insurance companies from excluding people they didn't want

to cover and requiring, in exchange, that everyone get insurance. Those who could not pay the full cost

would be offered subsidies.

Critics, however, say the "government mandate" to buy insurance goes too far. It crosses a line, they say, from reasonable regulation of commerce to a dictate from Washington to engage in commerce.

"This reaches into the living room of a guy who is healthy and doesn't want to buy health insurance,"

said Paul D. Clement, the former George W. Bush administration solicitor general, who represents

Republican officials from 26 states. He will try to persuade a conservative‐leaning high court that it

should break with decades of precedent and void the entire law.

The Supreme Court, signaling the extraordinary nature of the case, agreed to hear six hours of

arguments over three days, rather than the usual single hour. The court agreed to also consider

Clement's claim that Congress exceeded the Constitution when it pressed the states to expand the

Medicaid program.

Progressives, not surprisingly, see the court's intervention as ominous. They say the Constitution created

a national government to "promote the general welfare." It did not authorize the court to veto laws that

regulate business and commerce in the public interest, they say.

The issue also poses a dilemma for the court's conservative majority: Just what type of conservatives are

they? Do they seek to reimpose conservative principles on the two elected branches of government, or

do they hew to the idea of a limited, restrained role for the courts?

Since at least the Ronald Reagan era, conservatives have argued that elected lawmakers, not unelected

judges,

should

decide

the

major

issues

of

government.

Chief

Justice

John

G.

Roberts

Jr.

echoed

this

theme when he told senators during his confirmation hearings that he saw a modest role for judges,

more like an "umpire calling balls and strikes" than a star player.

As conservative Judge Laurence H. Silberman of the D.C. Circuit Court of Appeals wrote in upholding the

healthcare law in November, the Constitution left Congress "free to forge national solutions to national

problems."

Several other well‐known judicial conservatives have taken the same position, including J. Harvie

Wilkinson III of the U.S. 4th Circuit Court of Appeals in Richmond, Va., who wrote in a recent op‐ed

article that it was "tempting to shout states' rights when deeply flawed federal legislation is enacted, but

the momentary satisfactions of that exercise carry long‐term constitutional costs."

Other conservatives argue, however, that deference to the elected branches of government has gone

too far, allowing Congress and successive presidents to enlarge the federal role far beyond what the

Constitution intended.

The last time there was such a confrontation over congressional power was in President Franklin D.

Roosevelt's first term, when the court struck down a series of New Deal laws. It ruled, for example, that

the government could not require employers to pay minimum wages or recognize unions.



27

In 1937, however, the court famously switched directions and backed off. A year later, the justices

signaled they would look favorably on laws that regulate commerce but would view more skeptically

laws that infringe on individual or civil rights. That consensus has held since then, through both liberal

and conservative eras.

At times, the court has drawn a line. It struck down a mostly symbolic federal law in 1995 that banned

guns in school zones, and said gun possession did not involve a regulation of commerce.

But Justices Anthony M. Kennedy and Antonin Scalia said they agreed with the post‐New Deal view that

Congress had very broad power to regulate markets and commerce. They joined a 6‐3 ruling in 2005 in a

California medical marijuana case and said the federal authority to control the market in illegal drugs

reached into the home of Angel Raich. She was growing marijuana for personal use to relieve her pain.

Scalia wrote that "Congress may regulate even non‐economic local activity if [it] is a necessary part of a

more general regulation of interstate commerce." Obama's lawyers cite Scalia's words to defend the

mandate to buy health insurance. They say it is a "necessary part" of regulating the market in health

insurance and

guaranteeing

coverage

even

to

those

who

are

seriously

ill.

Most legal experts believed from the start ‐‐ and still do ‐‐ that the high court is likely to uphold the

Affordable Care Act because of its long tradition of deferring to Congress on economic regulation.

The four Democratic appointees ‐‐ Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor

and Elena Kagan ‐‐ are almost certain to uphold the law.

Roberts is likely to play the leading role, befitting his position as chief justice.

If Kennedy and Scalia shift away from the stance they took in the marijuana case, Roberts could join with

them

and

the

court's

two

other

conservatives,

Justices

Clarence

Thomas

and

Samuel

A.

Alito

Jr.,

to

strike

down the law.

Or Roberts could join with Kennedy and possibly Scalia and the four Democrats to uphold the statute.

A third option is open as well. If the justices were split, they could opt to put off a ruling until after 2014,

when the first taxpayers would pay a penalty for their failure to buy insurance.

Yale law professor Akhil Amar says the justices should let the voters decide which side is right in

November.

"They should say, 'If you don't like this, vote the bums out,' " he said.

#



28

11. http://www.google.com/hostednews/afp/article/ALeqM5jDyjX_uPh7g4O_1ihKhXPMh4JIBA

US Supreme Court reviews Obama health reform

March 26, 2012

Agence France Presse (AFP)

By Jim

Mannion

WASHINGTON — The US Supreme Court dives into the heart of President Barack Obama's signature

health care reform law Tuesday, taking up its most controversial requirement ‐‐ that all Americans

maintain insurance or be fined.

The nine justices appeared satisfied Monday they had jurisdiction in the blockbuster case, clearing the

way for a legal review that has huge implications for the nation and the 2012 elections.

"It seems to make no sense to separate the punishment from the requirement," Chief Justice John

Roberts said.

A first day of oral arguments probed when lawsuits can be brought in tax cases and whether the court

must wait until after Obama's Affordable Care Act enters fully into force in 2014 to consider legal

challenges to it.

"I think based on the arguments this morning, that the court is not likely to delay ruling on the merits

until the individual mandate goes into effect in 2014," said Elizabeth Wydra, a lawyer with the

Constitutional Accountability Center.

"They will be likely to get to the merits and so that makes the arguments tomorrow on the mandate

and Wednesday on Medicaid even more important," said Wyrdra, who had filed a brief in support of

the health care law.

The reform would extend coverage to 32 million Americans who currently lack it, but the individual

mandate is a linchpin because it requires that all Americans maintain minimum insurance coverage from

2014.

Although exceptions are made for certain categories of people, the government argues that the reform

will unravel if people can opt out. So individuals who do not buy insurance will face penalties.

Those provisions have made Obama's greatest legislative achievement the Republicans' biggest target

going into the 2012 presidential elections.

Hailed by

its

supporters

as

a social

advance

‐‐and

the

most

sweeping

reform

of

the

troubled

US

health

care system in decades ‐‐ its opponents attack it as an assault on individual liberties, deriding it as

"Obamacare."

The divisions have made for blockbuster hearings, even though the Supreme Court is unlikely to make

any rulings before June, when whatever it decides is sure to pour fuel on the election‐year fire.



29

"This is the most important issue in this election. It's one that encapsulates all the issues that are at

stake in this very critical election in our country's history," Republican presidential candidate Rick

Santorum told the crowd that gathered outside the court Monday.

Several hundred people gathered on the steps of the court, brandishing placards and chanting slogans

for and against the law, which was enacted in 2010.

"We love Obamacare, that's why we here," chanted some in the crowd outside the court.

Chris Crawford, a 20‐year‐old political science student who said he came to witness history, said he

opposed the law. "Giving the government the power to force citizens to buy something is a very

dangerous precedent," he said.

Inside, the court was packed with members of the bar, and guests of the court like Attorney General Eric

Holder and members of the public lucky enough to get a coveted seat.

The issue before the court on Monday was whether a law called the Anti‐Injunction Act, which bars

lawsuits to

prevent

Congress

from

assessing

or

collecting

taxes,

applied

to

lawsuits

challenging

the

Affordable Care Act.

If it does, the court would have no jurisdiction over the ACA until after people who refused to buy health

insurance were forced to pay penalties sometime after 2014.

But in 90 minutes of questioning, the justices appeared to lean strongly in favor of jurisdiction, sharply

questioning why the law's penalties should be considered taxes.

Justice Antonin Scalia said there was "at least some doubt" about whether the penalty was a tax, and

"unless it's clear, courts are not deprived of jurisdiction."

Justice Ruth Ginsburg said the act "does not apply to penalties that are designed to induce compliance

with the law rather than to raise revenue."

The government and the 26 states challenging the health care reform as unconstitutional both say the

court has jurisdiction, but the court had assigned its own lawyer, Robert Long, to make the case that it

does not.

"There is nothing in the statute that should be treated as a tax," said Solicitor General Donald Verrilli,

arguing for the government.

Gregory Katsas, arguing for the states, said for the act to come into play the purpose of the lawsuit has

to be

to

stop

the

taxes.

But

he

said,

"The

purpose

of

this

lawsuit

is

to

challenge

the

mandate,

not

the

tax."

#



30

12. http://motherjones.com/mojo/2012/03/obamacare‐supreme‐court‐decision‐explained

What the Supreme Court Could Do About Obamacare, Explained March 26, 2012

Mother Jones

By Adam

Serwer

The Supreme Court will hear oral arguments concerning the constitutionality of Obamacare—a.k.a. the

Affordable Care Act, or ACA—beginning Monday. (Last week, Obama reelection campaign manager Jim

Messina sent out an email to supporters noting that he and the campaign are proud of "Obamacare,"

thus claiming the term from their foes.) What will the justices decide? Here are a few of the probable

scenarios:

The Supreme Court punts. The first day of oral arguments is devoted to whether or not the Tax Anti‐

Injunction Act, a law that bars legal challenges to taxes before anyone actually pays them, applies to the

individual mandate—the Obamacare provision that levies a tax on individuals who don't purchase health

insurance and are not otherwise covered by an employer or government program. By taking this road

and embracing an argument first laid out by Judge Brett Kavanaugh, a George W. Bush appointee, the

Supreme Court could avoid dealing with the constitutionality of the individual mandate until after the

2012 election. Doing this could make the mandate ultimately more likely to be upheld, because the high

court would be acknowledging that the mandate is a tax and falls under the federal government's

constitutional authority to levy taxes.

"This might end with a whimper rather than a bang," says Adam Winkler, a law professor at the

University of California–Los Angeles. "If the court rules that the Tax Anti‐Injunction Act applies, then all

of the hullabaloo will be for naught."

The Supreme Court tosses out the whole law. Conservative opponents of the ACA argue that the

individual mandate—only

one

provision

of

the

law,

albeit

a central

one—is

an

unconstitutional

assertion

of federal power, and they insist it ought to be struck down. But they also want to see the whole law

ruled unconstitutional. Aside from the individual mandate, conservatives are also challenging the

constitutionality of expanding Medicaid to 16 million more Americans. By the White House's numbers,

that's about half of the Americans who will ultimately get coverage under the ACA. In his brief, former

Solicitor General Paul Clement, who will be arguing for the ACA's challengers before the court,

suggested that if either the individual mandate or the Medicaid expansion are ruled unconstitutional

then the entire law should go. As TPM's Brian Beutler points out, it doesn't help that Congress didn't

include in the original bill a "severability" clause (a traditional legislative provision that essentially says

that if a portion of a law is struck down, the rest of the legislation still stands). This makes it easier for

opponents to argue the entire law should be scrapped.

If the court doesn't rule on the individual mandate, however, that still leaves the question of whether

the ACA's Medicaid expansion is constitutional. But experts speculate the court is unlikely to leave the

mandate alone but overturn the health care law based on the Medicaid expansion.

The Supreme Court tosses the mandate and the ban on discrimination on the basis of preexisting

conditions. The ban on insurance companies refusing to cover individuals on the basis of preexisting

conditions is arguably the most popular part of the Affordable Care Act. Nevertheless, the Obama



31

administration has argued that if the high court should choose to strike down the individual mandate,

the whole bill wouldn't have to go. But, the government also notes, the prohibition on insurance

companies discriminating on the basis of preexisting conditions would have to be dumped, because

without the mandate the law's other provisions would "create a spiral of higher costs," with individuals

getting sick and enrolling at the last minute. "The federal government's position is that [if] the

mandate goes, other important things go too," says Doug Kendall of the Constitutional Accountability

Center.

The Supreme Court strikes down the individual mandate and keeps everything else. Neither the

conservative challengers to the law nor the Obama administration would be particularly happy with this

outcome. It would leave the current law mostly intact. But it would also, administration officials fear,

bankrupt the insurance companies still forced to provide coverage without the necessary financial

resources to do so. (Without a mandate, the insurance industry will have fewer customers and less

resources to handle an influx of those people with preexisting conditions.) However, during the five and

a half hours of oral arguments, the high court will also be hearing from H. Bartow Farr III, who will be

arguing for the 11th Circuit Court of Appeals' position that the court doesn't have to strike down

anything other than the individual mandate, if the court finds it unconstitutional.

The Supreme Court upholds the entire law. In the post‐Bush v. Gore era, where the justices' opinions

often seem to reflect little more than the ideological positions of the parties that appoint them, it seems

difficult to imagine that the Affordable Care Act fully survives. But it could happen. George Washington

University Law School Professor Orin Kerr, a former clerk for Justice Anthony Kennedy, is pretty bullish

on the ACA's chances. Last August, he predicted that "the mandate will be upheld by a vote of anywhere

from 6‐3 to 8‐1."

Something crazy happens. The above scenarios seem like the most likely outcomes. But this is a historic

case, and it's possible that the court could fail to find consensus one way or the other, leading to the

justices splitting in a way that no position ends up with a clear majority. It's unlikely, but anything could

happen.

#



32

13. http://www.tnr.com/blog/jonathan‐cohn/102034/supreme‐court‐obamacare‐day‐one

Day 1 at the Court: No Ducking the Issue March 26, 2012

The New Republic

By Jonathan

Cohn

Oral arguments for the Supreme Court on Monday were supposed to be boring. The subject wasn’t the

individual mandate, after all. It was the Anti‐Injunction Act, a relatively obscure law that prevents courts

from hearing legal challenges to taxes until after somebody has paid them.

But while the session was not always exciting, the justices did drop two hints about their thinking. All the

justices seem eager to decide this case, rather than punting on jurisdictional grounds. And even some of

the liberals are questioning whether the individual mandate qualifies as a tax, although the comments

were sufficiently ambiguous that divining intent from them remains difficult.

The tax issue is important because the law’s defenders, including the administration, have cited the

federal government’s authority to tax as one justification for the individual mandate. But when Robert

Long, the court‐appointed attorney, tried to make the argument that the mandate was a tax – at least

for the purposes of the anti‐Injunction Act – Justice Stephen Breyer pointedly asked about that assertion

Now, here, Congress has nowhere used the word ‘tax.' What it says is penalty. Moreover, this is

not in the Internal Revenue Code ‘but for purposes of collection.’

Moments late, Justice Ruth Bader Ginsburg chimed in with a similar sentiment:

The Tax Injunction Act does not apply to penalties that are designed to induce compliance with

the law rather than to raise revenue. And this is not a revenue‐raising measure, because, if it's

successful, they

won't

‐‐nobody

will

pay

the

penalty

and

there

will

be

no

revenue

to

raise.

The huge, big caveat here is that the Court could decide that the mandate is not a tax, for the purposes

of the anti‐injunction act, but that it is a tax, for purposes of the mandate’s constitutionality. In fact,

that’s what the administration has been arguing.

Neither Breyer nor Ginsburg made clear how they thought about that. But one of their conservative

colleagues, Justice Samuel Alito, expressed some skepticism when he put a question directly to Don

Verrilli, solicitor general: “Has the Court ever held that something that is a tax for purposes of the taxing

power under the Constitution is not a tax under the Anti‐Injunction Act?” Verrilli said, no, although he

argued that other precedents suggested the government’s reading was correct.

After the hearing, at least one attorney who was present for oral argument agreed that the justices

seemed to be telegraphing skepticism of the tax argument. “Several asked questions that made it clear

they were going to give the government a workout tomorrow on whether the mandate is a tax,” said

Elizabeth Wydra, chief counsel to the Constitutional Accountability Center, who has filed an amicus

belief on behalf of state legislators who support the law. But other close observers of the Court, like

Lyle Denniston, of SCOTUSblog, seemed less convinced the justices were sending a signal with their

comments.



33

If, indeed, the justices are skeptical of the tax argument, it's hardly fatal to the government's case.

Although many defenders of the law (including me) have argued the mandate is a tax, the lower courts

have generally ruled against that argument – and attorneys close to the case have said, for some time, it

is the least likely of the three justifications to pass judicial muster.

The stronger grounds for the mandate, they have been saying, are the government’s power to regulate

interstate commerce and to do whatever is “necessary and proper” for carrying out its duties. The

justices did not offer any clear hints on how they’re thinking along those lines, although, as George

Washington University Professor Orin Kerr noticed, Chief Justice John Roberts did start one intriguing

exchange towards the end.

While questioning Gregory Katsas, the lawyer representing the states challenging the mandate, Roberts

wondered whether the mandate really qualified as a mandate given the relatively weak penalties.

(Remember, the maximum penalty for violating the insurance requirement and failing to pay the fee is a

forfeiture of future tax refunds; there is no criminal sanction.) As Kerr notes at the Volokh Conspiracy

blog, the whole premise of the lawsuits is that the mandate is a command (in this case, a command to

buy insurance).

But

the

Court

could

rule

that

the

mandate

is

just

a financial

incentive

for

obtaining

insurance, presumably rendering it constitutional.

The justices did offer one other glimpse into their thinking, also during Katsas' time. And the issue was

one that will come up on Wednesday: Whether the Affordable Care Act’s expansion of Medicaid is

coercive to the states.

Justice Elena Kagan got Katsas to acknowledge that the states’ worry about the expansion wasn’t simply

about adding new people to Medicaid – it was about enrolling people who were already eligible but had

not enrolled. These new numbers, he suggested, would deplete state treasuries. Said Kagan:

…that

does

seem

odd,

to

suggest

that

the

State

is

being

injured

because

people

who

could

show

up tomorrow with or without this law will ‐‐will show up in greater numbers. I mean,

presumably the State wants to cover people whom it has declared eligible for this benefit.

This is consistent with the argument that the government and its supporters have made all along: That

the argument against expanding Medicaid would be an argument against the existing Medicaid

program.

Note: I updated this item, to emphasize that the implications of Breyer and Ginsbug's comments were

unclear and cite Orin Kerr's find at Volokh Conspiracy.

#



34

14. http://www.theepochtimes.com/n2/united‐states/health‐reform‐act‐let‐the‐arguments‐begin‐

210707.html

Health Reform Act: Let the Arguments Begin March 26, 2012

Epoch Times

By Gary Feuerberg

WASHINGTON—This week the Supreme Court finally hears oral arguments on President Barack Obama’s

health care reform legislation. The decision by the court for the Patient Protection and Affordable Care

Act or simply the “Affordable Care Act” (ACA) is likely to set off a storm, whichever way it comes down.

Most likely, the decision will be handed down at the end of June.

The ACA was initially called Obamacare only by the opponents of the law. Now even the supporters of

the ACA, including the president’s website, my.barackobama.com , are asking the public to say, “I like

Obamacare.”

The Supreme Court decision will affect 30 million uninsured Americans and likely impact the national

elections of 2012. It could become the main issue that determines who occupies the White House and

the party that controls Congress. Recognizing the importance of its decision, the court set aside six hours

for discussion, which it hasn’t done since 1966.

At stake is whether the United States will remain “the only rich country without universal health care,”

writes Adam Liptak, New York Times, March 11.

The health care reform has been compared to Medicare and Social Security by Obama’s aides, said

Liptak, while Republican leaders fear it moves the country “dangerously close to European‐style big

government.”

Opponents of the law will rally on Capitol Hill on March 27, the second day of Supreme Court hearings.

Rep. Michele Bachmann, Sen. Pat Toomey, Sen. Rand Paul, Sen. Jim DeMint, Rep. Paul Ryan, Sen. Ron

Johnson, and Rep. Alan West are slated to speak on the theme, Hands Off My Health Care. The rally is

organized by Americans for Prosperity (AFP) and is joined by coalition sponsors who include Tea Party

affiliates and several other conservative organizations.

Supporters of the law will hold events outside the court on each day of oral arguments, according to the

New York Times. Planned are speeches by people with medical problems who have benefited or could

benefit by the ACA.

The White

House

is

also

active

in

promoting

the

law.

On

March

23,

the

second

anniversary

of

the

signing

of the ACA, the White House released a statement touting its benefits at this time. It said that already

2.5 million more young adults have health insurance on their parents’ plan; 5.1 million people with

Medicare saved an average of $635 on the cost of their prescription drugs. And insurance companies

can no longer deny coverage to children because of a pre‐existing condition.

Medicaid Expansion, Sleeper Issue



35

A previous article in The Epoch Times described the four provisions in the ACA that the court agreed to

hear. The Anti‐Injunction Act (AIA) and the individual insurance mandate, called the individual mandate,

were two issues discussed.

The provision that has received the most attention is the individual mandate, which requires that all

individuals—with certain exceptions, such as those with religious objections—acquire health insurance

or pay a penalty. But “the media has paid almost no attention to the Medicaid expansion provision in

the ACA,” said Simon Lazarus, policy counsel for the National Senior Citizens Law Center.

Lazarus spoke March 15 at a forum at the National Press Club for reporters who will be covering the

Supreme Court on the ACA.

“The Medicaid expansion issue is the real sleeper issue of the health care challenge,” says Elizabeth

Wydra, chief counsel for the Washington‐based Constitutional Accountability Center, who represents

state lawmakers supporting the health care law.

The ACA will increase the number of persons enrolled in state Medicaid programs by allowing in year

2014 all

persons

under

65

with

incomes

up

to

133

percent

of

the

federal

poverty

level

(FPL),

that

is,

$14,856 for an individual and $30,656 for a family of four (based on the 2012 federal poverty level),

according to the government’s Centers for Medicare and Medicaid Services. This provision will increase

the number on Medicaid by an estimated 16 million, according to the Alliance for Health Reform.

Dr. Glenn Cohen explained in The New England Journal of Medicine that Medicaid had not previously set

a baseline income level for mandatory eligibility for adults. When fully phased in (in 2020), the ACA will

provide 90 percent federal matching funds for the new beneficiaries, and 100 percent initially. While

this may seem very generous, Cohen says Florida will likely argue, “Even a 10 percent copayment overly

stretches state budgets.”

“To

remain

eligible

for

any

federal

Medicaid

matching

funds,

states

must

accept

these

new

requirements. Moreover, state participation in traditional Medicaid will no longer be possible, since the

current terms and conditions of federal support will cease to apply in 2014,” Cohen said.

Court watchers were surprised that the Supreme Court agreed to consider the Medicaid expansion; the

court has never struck down any federal spending program. Only the lawsuit brought by Florida, joined

by 25 other states, challenged the Medicaid expansion, and no lower court overturned it. Even the 11th

Circuit that struck down the individual insurance provision upheld Congress’s authority to expand

Medicare.

But the fact that the court set aside an hour to hear the case signals the court takes this issue seriously.

The opponents of the ACA say that the Medicaid expansion uses “coercion” by Congress in making the

receipt of

federal

funds

for

a federal

program

conditional

to

states

outlaying

funding

that

is

an

unfair

burden for them. Although states don’t have to participate in Medicaid, as a practical matter, states

heavily rely on federal matching money to pay for medical care of the poorest citizens.

Former attorney general of the state of Florida, Bill McCollum, who filed the challenge to the ACA, a suit

eventually joined by 25 other state attorneys general, said that the single biggest item in many state

budgets is often Medicaid. “Florida’s Medicaid program consumes more than a quarter of the state’s



36

financial outlays” in a budget that is already strained, McCollum said in the news release when Florida

challenged the law moments after President Obama signed it on March 23, 2010.

The government will argue that it is a proper exercise of Congress to attach conditions to the receipt of

federal funds, says Sallie Sanford, in an op‐ed for the Jurist Forum Feb. 16.

Lazarus said that reversing the Medicaid expansion provision could not only potentially invalidate Medicaid in general, but also all federal aid to education, and guarantees against discrimination by

recipients of federal funds.

“Many people in the social welfare community [believe this] is really the most important issue in this

case because aside from Medicare and Medicaid and Social Security, if the coercion argument is found

to prevail … you can kiss goodbye to the idea that there is a social safety net that the federal

government can impose or inaugurate,” said Lyle Denniston, a legal journalist who has reported on the

Supreme Court for 52 years, at the National Press Club forum. “That is a really big issue.”

#



37

15. http://www.tnr.com/blog/jonathan‐cohn/102098/obamacare‐kennedy‐roberts‐severability‐

mandate‐insurance‐reform

Let's All Take a Moment to Breathe, OK? March 27, 2012

The New

Republic

By Jonathan Cohn

Everybody calm down. And when I say everybody, I include myself.

Tuesday’s oral argument at the Supreme Court was not the finest hour for health care reform, for the

philosophy of activist government, or for Solicitor General Don Verrilli. But oral arguments don’t

typically change the outcome of cases. They are important primarily for the signals they send about the

justices’ thinking. And those signals can be difficult to interpret.

Administration officials on Tuesday were quick to remind reporters that Judge Laurence Silberman gave

the government a very hard time when it argued the same case before the D.C. Circuit Court of Appeals.

But Silberman went on to uphold the law, in what was by any standard a stinging rebuke to the critics. In

the Sixth Circuit, Justice Jeffrey Sutton also put administration lawyers through tough questioning before

issuing his own, equally unambiguous decision upholding the law. As Sam Stein points out at Huffington

Post, the questions from Silberman and Sutton were awfully close to the ones conservatives were asking

on Tuesday.

Nobody I know predicts the justices will vindicate the Affordable Care Act as strongly as either one of

those judges did. And that tells you just how dramatically Tuesday’s hearing changed expectations.

Before those arguments, credible legal experts were still thinking the court would uphold the law by a

majority of six‐to‐three or even seven‐to‐two. Now the betting seems much more mixed, with the

smartest court watchers I know suggesting the outcome could really go either way. The odds, in other

words, are

50

‐50

at

best.

Still, you can find credible reasons to think the justices will uphold, whether it was Chief Justice John

Roberts’ comments about the tax power on Monday or Justice Anthony Kennedy’s parting comments on

Tuesday, acknowledging that health care might be a special case in which the government ought to have

some special powers, assuming there’s a limit to them. Here’s how Elizabeth Wydra, chief counsel from

the Constitutional Accountability Center, sees things shaping up:

I think Roberts and Kennedy are still in play. Having watched many oral arguments, I've seen

Kennedy and Roberts ask tough questions with much more of a bite behind them than their

admittedly tough questions asked of the Administration today; they didn't seem to me to be

partisans of

one

side

or

the

other.

Finally,

despite

what

many

of

us

hoped

based

on

his

Raich

concurrence, which is squarely on point, Scalia is pretty clearly voting to strike down the

mandate.

Wydra is a fan of the law, obviously, since she wrote an amicus brief defending it. But Lyle Denniston,

at SCOTUS blog, had a similar take:



38

If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s

defense of the new individual health insurance mandate, or can think of one on his own, the

mandate may well survive. If he does, he may take Chief Justice John G. Roberts, Jr., and a

majority along with him. But if he does not, the mandate is gone. That is where Tuesday’s

argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the

impression that he might yet be the mandate’s savior.

And here's Richard Primus, a constitutional law professor at the University of Michigan and former

Supreme Court clerk, via e‐mail:

As was true before today, I wouldn't be surprised to see the thing go down 5‐4. But it's still the case that

I wouldn't be surprised to see it upheld, either. Roberts and Kennedy were asking exactly the questions

that I'd expect them to ask irrespective of which way they are going. I would now be somewhat

surprised to see Scalia come on board ‐‐ I have a pretty good idea of what his opinion distinguishing this

case from Raich will look like. But I can also imagine quite easily what Kennedy's opinion sustaining the

law would look like. ... Don't misunderstand me. Today was not encouraging for the government. But

the game isn't over, either. All in all, I think it's mostly where it was before, and we'll still have to wait

and see.

Later I’ll have more to say about these portents, favorable and unfavorable. Or, more accurately, a

colleague will have more to say about them. (Watch this space.) In the meantime, though, assume that

the court does strike down the mandate. That leads to another question: What else might it strike

down? That’s one subject the Court will take up on Wednesday, in its final day of hearings on this case.

The issue is “severability.” That’s the question of whether, by invalidating one part of the law, the Court

must invalidate the whole thing. Normally, laws include a severability clause, stipulating that the statute

can survive even if the courts throw out one part. The Affordable Care Act lacks such a provision,

apparently as a byproduct of poor drafting. Citing that, the states argue that the Court should throw out

the

whole

law

if

it

decides

to

strike

down

the

mandate.

The government disagrees, except for one key caveat: It sees the insurance reforms as the equivalent of

a package deal. Without the individual mandate, the government says, regulations requiring insurers to

provide coverage to everybody (“guaranteed issue”) at a uniform price (“community rating) can’t work.

(Whether the court should actually throw out those regulations now actually seems to be a separate

question, having to do with legal issues I only partly understand and won't bother to explain right now.)

Given that the states also find the mandate essential to community rating and guaranteed issue, could

the courts nevertheless strike down the mandate but leave those other two insurance reforms in place?

Actually, the answer is yes. The court has even solicited a brief to this effect, from a lawyer making the

case that ditching the mandate needn’t require ditching the rest of the insurance reforms. I happen to

think he

has

a point,

or

half

of

one

anyway.

As a practical matter, insurance reform without a mandate causes serious problems. If you don’t believe

me, read my story from last week about New Jersey, which tried to do just that—and failed miserably.

It’s the nature of the beast. Once you create an insurance system where everybody is entitled to

coverage, rates will go up unless most people participate. And as the rates go up, more people flee the

system. You end up with what the wonks call an “adverse selection death spiral.”



39

But study the New Jersey history carefully, because what happened there may not be precisely what

happens in the nation as a whole if the mandate falls victim to the conservative justices. The Affordable

Care Act has several features that New Jersey did not. Chief among them are subsidies, which will make

insurance more feasible for—and more appealing to—people who otherwise might forsake it because of

cost. The law also has a system of risk adjustment, which is basically a way of forcing plans that attract

healthier enrollees to subsidize those that attract sicker ones. In theory, should help mitigate the effects

of the adverse selection death spiral.

Are subsidies and risk adjustment sufficient to create a well‐functioning insurance market? Most

experts, including the Congressional Budget Office, say no: They believe that insurance without a

mandate will mean premiums go up and insurance coverage goes down, relative to what they would

have been if the mandate were in place. That’s why the mandate is necessary, at least in the legal sense

of the word. But these elements alone might—that’s “might,” not “would”—be enough to stabilize the

market, so that a lot of people are still better off. The predictions from CBO and other authorities show

that, for example, insurance reform without a mandate still results in more people getting insurance

than would otherwise have it.

And if

that

happens,

both

states

and

the

federal

government

would

have

a chance

to

respond

by

revisiting the terms of the law. (That’s one of the few virtues of the long lag time before the new

insurance system comes into place.) In an ideal world, Congress would enact reforms that established

the mandate anew, but under terms that the Supreme Court would approve— by, for example,

reconfiguring the penalty as an explicit tax, with an offsetting credit for those who have insurance.

That’s almost certain not to happen, given political circumstances, but the federal government might—

particularly under pressure from the insurance industry, which worries about reform without a

mandate—come up with other methods of improving participation, such as stiff penalties for late

enrollment. A few states might even enact mandates on their own. (The Court has indicated that would

be constitutional; it’s the federal power to impose a mandate the critics are attacking.)

The

results

would

like

likely

fall

short

of

the

nearly

universal

coverage

that

the

Affordable

Care

Act

is

supposed to achieve, with some states doing much better than others. But that might still be an

improvement over the status quo, with at least a chance of further improvement later on. A decision to

strike down the mandate would be a breathtaking act of judicial arrogance, damaging to the country’s

well‐being and to its delicate balance of governing powers, but there’s a chance other parts of health

reform could survive in some form.

#



40

16. http://www.law.com/jsp/nlj/PubArticleSCI.jsp?id=1202547106619

For the lawyers, a contrast in styles during Tuesday's arguments

March 27, 2012

The National

Law

Journal

ByTony Mauro

Solicitor General Donald Verrilli Jr. on Tuesday began the most important oral argument of his career as

he does in most cases, with a soft‐spoken, almost halting manner. He reached for a gulp of water to

soothe a scratchy throat.

Fifty‐six minutes later, after being hit with hostile questions about the constitutionality of the Affordable

Care act, Verrilli ended his presentation pretty much the same way, quietly asking to reserve the balance

of his time.

It was not until his rebuttal an hour later that Verrilli gave a full‐throated defense of the law, slamming

his opponents' "utterly unrealistic" alternative for financing the nation's health care system without the

individual mandate at issue in the case. "Congress confronted a grave problem when it enacted the

Affordable Care Act: the 40 million Americans who can't get health insurance and suffer often very

terrible consequences,' Verrilli said forcefully.

But by that point, some commentators thought that Verrilli's sudden passion was too late, and that the

advantage had gone to his adversaries Paul Clement and Michael Carvin, whose emphatic, unhesitating

style made it seem that victory was easily within their reach.

CNN commentator Jeffrey Toobin, author of a bestselling book on the Court, went outside to pronounce

on the air that the argument was a "train wreck" for the government. Toobin asserted that Verrilli had

done a "simply

awful"

job

and

was

not

"ready

with

good

answers."

Carrie Severino, a former Clarence Thomas clerk, counsel to the Judicial Crisis Network and an ardent

opponent of the Affordable Care Act, also spoke of Verrilli's "rough start" and "stumbling" presentation.

Other critics took Verrilli to task for failing to give a crisp answer to the request by conservative justices

for a "limiting principle" that would reassure them that Verrilli was not asking for unlimited federal

power to cure all ills. In addition, some said Verrilli should have repeatedly focused attention on Court

precedents like Gonzales v. Raich in which the Court gave an expansive reading to the commerce power

of Congress.

But just as quickly, supporters of the law came to Verrilli's defense, asserting that the contrasting styles

of the

lawyers

who

argued

Tuesday

should

not

obscure

the

fact

that

the

SG

had

made

all

the

points

he

had intended to make in defense of the law as a constitutional approach to solving a national economic

problem. "Don is little more formal, more understated, but at the end of the day, he did an admirable

job," said Douglas Kendall of the Constitutional Accountability Center, which supports the law.

Kendall also said press coverage of the arguments has overlooked the fact that Chief Justice John

Roberts Jr. and Anthony Kennedy questioned Clement and Carvin skeptically, making them possible

votes for the government's position.



41

Thomas Goldstein of Goldstein & Russell, who also watched the arguments, said the "optics" of an

argument can be affected by factors entirely outside the control of the lawyers. The Court's conservative

justices are sharper questioners, for example, making their target – in this case Verrilli – seem like he is

always on the defensive. "It's easy for Paul to look brilliant when he has them on his side," said

Goldstein, a veteran advocate before the Court.

By contrast, Goldstein said, the liberal justices don't make their targets sweat even when they are asking aggressive questions. "Justice Sotomayor steps in – and steps on – her colleagues, and Justice Breyer will

ask a question that lasts three minutes," blunting their effectiveness, said Goldstein. He added that

Justice Elena Kagan is probably the most effective questioner on the Court's liberal side.

Mayer Brown's Andrew Pincus, another veteran advocate who was in the audience, said the

government had "the harder side of the stick" in Tuesday's argument. "The justices asked probing

questions, which is what you would expect of an argument of this moment and magnitude … I think Don

did a good job of explaining why this market is unique."

Then, there is the Clement factor. With his conversational style, confident but usually not cocky,

Clement was

at

the

top

of

his

game

on

Tuesday,

handling

questions

with

ease.

"When

Paul

does

as

good

a job as he did," said Goldstein, "it's hard for anyone else to shine."

#



42

17. http://www.reuters.com/article/2012/03/27/usa‐healthcare‐court‐politics‐

idUSL2E8QR49120120327

US health law partisans read high court hearing both ways March 27, 2012

Reuters

By David Morgan and Ian Simpson

WASHINGTON, March 27 (Reuters) ‐ The Supreme Court is not expected to rule on the U.S. healthcare

law's contentious individual mandate for another three months.

But that did not stop partisans on both sides of the political battle from claiming ‐ or at least trying to

salvage ‐ an early victory in the court of public opinion on Tuesday.

The shouting match began well before the high court started hearing oral arguments on the case this

week.

It escalated measurably after the justices wrapped up their rapid‐fire q uestions on Tuesday on the

constitutionality of the provision that requires most Americans to have health insurance in 2014.

While no one would predict a final ruling, some Republicans appeared jubilant over signs of an

ideological split that could position the court's 5‐4 conservative majority in opposition to the mandate.

"Based on my reading of the ... hearings today, it is doubtful that the individual mandate will survive,"

Senator Mike Lee of Utah said in one of several Twitter messages Senate Republicans issued after

Tuesday's hearing concluded.

But advocates of the healthcare overhaul saw a silver lining, saying the tone of the justices' discourse

appeared to

favor

the

law.

"There was a majority of the court in favor of upholding ... the individual mandate," said Doug Kendall

of the liberal Constitutional Accountability Center.

The mandate is the linchpin of President Barack Obama's signature policy to provide healthcare

coverage to more than 30 million uninsured Americans under the 2010 Patient Protection and

Affordable Care Act, or ACA.

It is being challenged by 26 states and an independent business group that want the provision

overturned on the grounds that it exceeds the federal government's constitutional authority.

Outside the court's Greco‐Roman colonnade, the law and its main provision are at the center of a

vitriolic political debate between presidential candidates, lawmakers and allied groups that could help

determine who controls the White House and Congress after the Nov. 6 election.

SOURCES OF SUPPORT

But not everyone who opposes the law saw Tuesday's proceedings as a victory.



43

"It didn't look to me as if it was a slam dunk from any perspective," said Douglas Holtz‐Eakin, president

of the conservative American Action Forum, who attended the hearing.

Advocates of the law said the hearing demonstrated solid support for the mandate from the court's four

liberal justices ‐ Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen Breyer.

That means the measure could be upheld if one conservative justice joins them and some saw evidence

that Justice Anthony Kennedy could do so.

"Justice Kennedy asked very tough questions. And yet he described the unique dynamics of the

healthcare market himself, more so than anyone else," said Ethan Rome, executive director of Health

Care for America Now, a coalition of union and liberal groups that has been lobbying for reform since

2008.

"Not all healthcare advocates saw today as a good day. But that's the wrong way to read it," he said.

"Kennedy needs to ask the toughest questions to assure conservatives that any non‐ideological

judgment will

be

based

on

the

merits."

Ron Pollack, executive director of the healthcare consumer advocacy group Families USA, said the

court's final ruling will depend on how many justices view the mandate as an instrument for regulating

healthcare rather than spurring insurance sales.

"If it's healthcare, they'll come out in a way that understands healthcare consumes one out of every six

dollars in the economy and that it's rational for Congress to regulate it," Pollack said.

Regardless of how the Supreme Court rules on the legal issues, healthcare reform's ultimate fate could

lie in the political realm, depending on the outcome of November elections.

"If Senate Republicans become the majority next year, the first item on the agenda of the new Senate

Republican majority would be the repeal of Obamacare (ACA) and the replacement of it with something

that makes more sense and is targeted at the problems that we actually have in American healthcare,"

said Senate Republican leader Mitch McConnell.

#



44

18. http://online.wsj.com/article/SB10001424052702304177104577308052477991894.html

Kennedy Leaves Both Sides Hopeful March 27, 2012

Wall Street Journal

By BRENT

KENDALL

South Carolina Attorney General Alan Wilson, an opponent of the health‐care law, would like to think

Justice Anthony Kennedy is on his side, citing the moment Tuesday when "he said the health‐care

mandate changes the relationship of the federal government to the individual in a very fundamental

way."

Doug Kendall, president of the Constitutional Accountability Center, a liberal legal group that filed

briefs supporting the overhaul, believes Justice Kennedy might be on his side, based on his description

of the problems created by the uninsured.

Steven A. Engel, a former law clerk of Justice Kennedy and now a partner at Dechert LLP said: "It's

entirely possible he doesn't know yet which way he's going to go."

The mystique that is Justice Kennedy—the almost‐certain swing vote in any big Supreme Court case—

was on full display during Tuesday's arguments over whether President Barack Obama's signature

legislative achievement passes constitutional muster. After two intense hours of oral argument, both

sides were investing their hopes in him. But neither could confidently predict how he will vote.

George Washington University law professor Orin Kerr, a former Justice Kennedy law clerk, said his

former boss appeared to be struggling with how the case should be decided. "It's too hard to predict

where he will come down," Mr. Kerr said. "Some justices have a clear view right off the bat. Justice

Kennedy is more likely to think over his position over time."

The true leanings of Justice Kennedy, an appointee of President Ronald Reagan who has served since

1988, can be tough to discern from his comments during oral arguments.

Take his October 2004 questions in Roper v. Simmons, where the court considered whether the

Constitution forbids the death penalty for juvenile offenders. During that session, he asked several

skeptical questions and suggested the death penalty served as a deterrent to 16‐ and 17‐year‐old gang

members. His comments left some court watchers believing he would side with death‐penalty

supporters.

Five months later, Justice Kennedy wrote the court's 5‐4 opinion declaring juvenile executions a

violation of

the

Constitution's

ban

on

cruel

and

unusual

punishment.

Four

liberal

members

joined

him

in

the majority.

Being the swing vote, Justice Kennedy has often found himself at the center of the court's biggest cases.

In 2003, he wrote a passionate majority opinion in Lawrence v. Texas, where the court voted 6‐3 to

strike down a Texas anti‐sodomy statute.





46

19. http://www.washingtonpost.com/politics/court‐watchers‐on‐both‐sides‐speculate‐about‐health‐

care‐mandate/2012/03/27/gIQAZgmBfS_story.html

Court watchers on both sides speculate about health‐care mandate March 27, 2012

Washington Post

By David A. Fahrenthold and N.C. Aizenman

Political Washington spent Tuesday engaged in an odd parlor game that combined the guesswork of

charades with the messaging confusion of “telephone.” Inside the Supreme Court, 500 people stared at

nine justices, trying to divine the meaning behind questions, quips and even smiles.

Outside, a peculiar subset of the capital’s denizens were on their various electronic devices, eagerly

trying to decode what those inside thought they saw.

By the end of Tuesday’s long‐awaited oral arguments, the individual mandate — a crucial piece of

President Obama’s health‐care law — seemed to be in trouble. The solicitor general, charged with

guarding the measure, had a rough outing under sharp questioning from the justices.

The result was that the two factions that had built their identities around the controversial law — one

promising to defend it, the other to end it — were forced to consider a future without it. Proponents

were hopeful; critics were encouraged. Neither had a Plan B.

“If they don’t uphold it, I suspect it will be a major, major issue in the elections — congressional and

presidential — this fall,” said Sen. Patrick J. Leahy (D‐Vt.). “The debate will be with the American

people.”

Virginia Attorney General Ken Cuccinelli II (R), an opponent of the law, said he was buoyed by the

arguments: “I

went

in

cautiously

optimistic

about

our

prospects

on

the

individual

mandate,

and

I came

out happier than when I went in,” he told reporters after the two‐hour hearing.

Tuesday was the second of three days of oral arguments before the Supreme Court on the measure. But

it was the one that counted most. The mandate that virtually every American must obtain health

insurance by 2014 or pay a penalty is one of the linchpins of the legislation. Opponents say the mandate

is unconstitutional, an improper extension of federal authority.

And so Washington’s attention was focused on a single room with the capacity of a high school

auditorium.

The crowd

included

Attorney

General

Eric

H.

Holder

Jr.,

Health

and

Human

Services

Secretary

Kathleen

Sebelius, lawmakers, state attorneys general, and dozens of journalists and lawyers. BlackBerrys were

banned. It was a rare kind of moment in a town where senators tune out in hearings and House

members speak to empty chambers.

There was nothing to do but listen.



47

“It reminded me [of] ‘Mr. Smith Goes to Washington,’ ” said Hans von Spakovsky, a lawyer at the

conservative Heritage Foundation, recalling the scene in that movie when Jimmy Stewart’s character

speaks to a rapt, and full, Senate chamber. “There are hardly ever any real debates . . . but that does

happen in the Supreme Court.”

Lawyers in the crowd were most attentive to Justice Anthony M. Kennedy, who is expected to be a key

swing vote in the case. In the first hour of arguments, Kennedy gave the law’s opponents hope by asking skeptical questions.

“Do you not have a heavy burden of justification,” he asked Solicitor General Donald B. Verrilli Jr., “to

show authorization under the Constitution?”

But as the arguments went on, Kennedy asked other questions that encouraged the measure’s

supporters. He seemed at one point to accept an argument key to the Obama administration’s case:

that people who don’t buy health insurance are still in the health‐care market, because they will need

care at some point.

“They are

in

the

market

in

the

sense

that

they

are

creating

a risk

that

the

market

must

account

for,”

Kennedy said.

So what does that all mean? Advocates on both sides of the case took Kennedy’s statements as a signal

that he and the court will rule in their favor.

“I am still hopeful that we have a majority on the court to uphold the act,” said Elizabeth B. Wydra of

the Constitutional Accountability Center. She supports the law. “You know, hopefully, 6 to 3.”

Said Von Spakovsky, who opposes the measure: “I think it’s at least 50‐50” that the mandate will be

struck down.

“Oh, I think it’s better,” said his Heritage Foundation colleague Todd Gaziano, sitting across a conference

table at the group’s headquarters. He had taken extra encouragement from a particular smile from

Justice Samuel A. Alito Jr. Gaziano thought that was a sign that the Obama administration’s case was

slipping away. “I think it’s an 80 percent chance.”

“I’d probably go to 60,” Von Spakovsky said, encouraged by his colleague’s optimism.

Outside the courtroom, things looked even more muddled.

“It’s just the damnedest thing in the 21st century,” said Russell Wheeler, a legal expert at the Brookings

Institution. He was hitting a “refresh” button every three to four minutes, scanning law blogs. His heart

sank and

then

rose

as

he

heard

secondhand

reports

about

Kennedy’s

questions.

“With

all

this

technology, we’re . . . basically looking for puffs of smoke to come out of the court.”

As Tuesday went on, a consensus began to emerge: It had been a good day for the law’s opponents,

raising the odds that some or all of it will be overturned.

“Overall, there were four justices up there who articulated every aspect of our argument as well as we

did, if not better,” said Randy Barnett, a Georgetown University law professor who has led the fight



48

against the law. In an interview on the court steps, Barnett said he was counting Chief Justice John G.

Roberts Jr., as well as Alito and Justices Antonin Scalia and Clarence Thomas. “I don’t see how we can

ask for anything better than that.”

There also was criticism for Verrilli, who seemed to struggle at times in the face of skeptical queries.

The real importance of Tuesday’s arguments won’t be known until June, when the court is expected to

announce its decision. Leading Democrats said there are no plans for a legislative fallback position if the

mandate is overthrown, saying they could not decide how to respond until after reading such an

opinion.

“You cannot base what the court is going to do based on an oral argument. It’s nice, it’s good to

speculate as to what might happen, but believe me, those nine men and women are extremely smart,

and a lot of times they probe with those questions, not in any way to tip their mitt as to how they’re

going to vote on it,” Senate Majority Leader Harry M. Reid (Nev.) told reporters Tuesday afternoon.

Republicans were fuzzy on how they would proceed should the law be struck down. Senate Minority

Leader Mitch

McConnell

(Ky.)

on

Tuesday

would

say

only

that

if

Republicans

won

control

of

the

Senate

in the fall, they would seek to replace the legislation with “something that makes more sense and is

targeted at the problems that we actually have in American health care.”

At the end of the day, the parlor game wound up with this: On CNN’s “Situation Room With Wolf

Blitzer,” Democratic strategist James Carville was trying to spin a Supreme Court defeat that hadn’t

happened.

“I think this will be the best thing that has ever happened to the Democratic Party,” he said. If the law is

struck down, and the health‐care system reverts to its old problems, Carville said, that would be a good

thing: “Then the Republican Party will own the health‐care system for the foreseeable future. And I

really

believe

that.

That

is

not

spin.”

#



49

20. http://www.npr.org/blogs/health/2012/03/28/149485784/supreme‐courts‐medicaid‐decision‐

could‐reach‐far‐beyond‐health‐care

Supreme Court's Medicaid Decision Could Reach Far Beyond Health

Care March

28,

2012

NPR (print story accompanies audio above)

By JULIE ROVNER

After Tuesday's judicial fireworks, the Supreme Court wraps up arguments on the new health care law

Wednesday by focusing on two questions. The first involves what would happen if the "individual

mandate" — the core of the law that requires most people to have health insurance — is struck down.

Would the rest of the law fall, too, or could some provisions stay?

But it's the second argument the court will hear about the Affordable Care Act that could potentially

have the most far‐reaching consequences. At issue is whether the health law's expansion of the

Medicaid program

for

the

poor

unfairly

forces

the

states

to

participate.

If the justices find the federal government is coercing the states, that decision could reach far beyond

health care.

Medicaid is already one of the nation's largest providers of health care services, says Diane Rowland,

executive director of the Kaiser Commission on Medicaid and the Uninsured.

"It provides health insurance coverage to 1 in 3 American children, so it's a fundamental part of the way

in which we deliver health care services today," she says.

But

as

large

as

the

program

is,

Medicaid

today

in

most

states

is

still

not

available

to

people

simply

because they are poor. They have to be poor and something else — such as a child, a pregnant woman

or older than 65. Under the health law, however, that would no longer be the case.

"Medicaid changes from a program that covers certain categories of low‐income individuals to a

program available for health coverage for all individuals," Rowland says.

All individuals, that is, with incomes under 133 percent of the federal poverty line. This year that's

$14,856. According to the Congressional Budget Office, that will add about 17 million new people —

mostly adults without children — to Medicaid's 60 million or so enrollees by the year 2016.

Currently, states share the cost of Medicaid with the federal government. Wealthier states pay half;

poorer states

pay

a smaller

share.

But

the

federal

government

recognized

that

states

are

strapped

for

cash these days. So most of the new cost — all of it at first; 90 percent eventually — is being paid by the

federal government.

But that's not stopping states from claiming that this expansion amounts to unconstitutional arm‐

twisting. That's because if they don't follow through with the new changes, they have to pull out of

Medicaid altogether — or so they claim.



50

Former Bush administration Solicitor General Paul Clement is representing the 26 states that are suing

over the Medicaid provisions of the health law.

He says what the law means is that if states don't agree to the expansions, "we're going to take away all

of your money, including all of the money that you've kind of gotten used to, all of the money that

you've used for different groups of people. And that does seem a little more coercive."

Medicaid is, in fact, a voluntary program. States don't have to participate. But they all do. And Clement

says so much money is at stake — more than $400 billion in 2010 — that dropping out is simply

unrealistic.

"How any state at this point could say, 'We're just going to turn down Medicaid funding from the federal

government' — I don't think any set of citizens would allow that to happen," Clement says. "Because it's

all this money that's being taken from the state taxpayers that would then be going to every state in the

union but that state; it just wouldn't work."

But is this latest expansion of Medicaid really coercive? Sara Rosenbaum, a law professor and Medicaid

expert at

George

Washington

University,

says

it's

hardly

different

from

many

of

the

expansions

that

have come before.

"States already cover a lot of adults," Rosenbaum says. "They cover parents; they cover adults with

disabilities; they cover adults who are pregnant. And so all this expansion does is really to fill in the

remaining gaps. And it's something that many states have wanted to do over the years."

While states are worried about how much they might ultimately have to pay for all those new adults,

even if it's only 10 percent of the cost, Rosenbaum says, over the long term, they might actually save

money.

"There

are

studies

that

suggest

by

just

2019

alone,

states

will

have

saved

about

$100

billion

in

state

funding for uncompensated care, especially for adults," she says.

But the real reason people are watching the Medicaid arguments so closely has nothing to do with

Medicaid. It's the potential impact on the relationship between the federal government and the states.

This is one of the few times the court has taken up what's known as the "spending clause" of the

Constitution.

"It's long been established by the Supreme Court that Congress can attach conditions to federal funds

that it gives the states," says Elizabeth Wydra of the Constitutional Accountability Center, a liberal

think tank. "States can follow the requirements ... or they can opt out of receiving the funds

altogether."

But while earlier cases have suggested that there could be limits to those conditions, the court has never

said what those limits are. And it's not just Medicaid at stake.

"That places in jeopardy, in addition to the entire Medicaid program, a host of other very beneficial

federal grant programs in the education context, child welfare and other programs," Wydra says. In

fact, it could affect virtually any program in which the federal government gives money to the states

with conditions attached.



51

So far, no lower court has agreed that the Medicaid expansion coerces the states. But no one expected

the Supreme Court to hear this part of the challenge against the health law, either.

#



52

21. http://motherjones.com/mojo/2012/03/will‐supreme‐court‐create‐zombie‐obamacare

Will the Supreme Court Create Zombie Obamacare? March 28, 2012

Mother Jones

By Adam

Serwer

The first question before the Supreme Court on Wednesday, the last of three days of oral argument

about the constitutionality of President Barack Obama's health care law, was whether the individual

mandate—the requirement that certain uncovered Americans purchase health insurance or pay a fine—

was the "heart" of Obamacare. In other words, if that beating heart is ripped out by a majority of the

nine black‐robed justices, should the Affordable Care Act be allowed to stumble along or be put down

with a double‐barrel shot to the head?

Former Solicitor General Paul Clement, representing 26 states challenging the law, said that without the

individual mandate the rest of the bill would not work and Zobamacare should not be allowed to rise

from the remains.

"What you end up with at the end of that process is just sort of a hollow shell," Clement said. "You can't

possibly think that Congress would have passed that hollow shell without the heart of the Act." Justice

Antonin Scalia later asked Deputy Solicitor General Edwin Kneedler that particular question: "Can you

take out the heart of the act and leave everything else in place?"

Kneedler had a tough position to defend. The Obama administration's stance is that if the individual

mandate is struck down, popular provisions like the ban on insurance companies discriminating due to

preexisting conditions must also go. Kneedler was telling the court that if a majority chooses to rip out

the heart of the bill, they will have to tear out the entire circulatory system, too. The reason: Without

the individual mandate to push healthy individuals to buy insurance, the insurance industry would go

bankrupt trying

to

cover

those

with

serious,

expensive

health

problems.

Yet

Kneedler

also

argued

that

the Affordable Care Act created a "sharp dividing line" between those popular reforms and the rest of

the law. The legal concept in play here is "severability": whether or not the law can remain if one piece

is stricken.

The administration's argument was essentially a plea to protect the health insurance industry should the

mandate fall. Both Democratic– and Republican– appointed justices seemed sympathetic to that

argument. For the Republican‐appointed justices, this would make it easier to overturn the entire

Affordable Care Act. When Attorney H. Bartow Farr III—who the court designated to defend an appeals

court ruling that neither the government nor the states embraced—stood up to argue that the law

would still largely function as intended without the mandate, Justice Sonya Sotomayor worried aloud

about an

impending

"death

spiral."

Likewise,

Justice

Anthony

Kennedy,

considered

the

swing

vote

on

the court, suggested that it would be judicial overreach if "one provision was stricken and the others

remained to impose a risk on insurance companies that Congress had never intended."

Despite all the focus on the individual mandate and whether it could be severed from the rest of the

law, the constitutionality of the law's Medicaid expansion, which was also considered Wednesday, could

have a more dramatic impact on Americans' health care. That expansion will lead to 16 million more

Americans being covered, about half of the entire number of people who would receive coverage under



53

the Affordable Care Act. (Medicaid offers federal money to states to help provide health care to the

poor and elderly—the program is technically optional, but all states participate. Under Obamacare, the

states have to accept the expansion or opt‐out of the program.) Clement contended that this expansion

should be struck down because the states would never refuse the money, and therefore this provision

was unconstitutionally coercive.

"The chances for an adverse ruling [on the Medicaid measure] are lower but the stakes are higher,"

says Doug Kendall of the Constitution Accountability Center. "The stakes are higher because if the

court does find coercion in this expansion of Medicaid, than a lot of other previous and future

expansions of Medicaid are at risk."

The Democratic appointees on the court were pointedly unconvinced by Clement's argument. "It's just a

boatload of federal money for you to take and spend on poor people's healthcare," Justice Elena Kagan

said. "It doesn't sound coercive to me, I have to tell you." Justice Ruth Bader Ginsburg pointed out that

the court had never struck down a state‐federal partnership program "because it was so good that it

becomes coercive to be in it." Justice Sonya Sotomayor said that the main element of "coercion" here

appeared to be politicians not wanting to face voters after declining Medicaid funding.

Clement's argument, however, received a favorable reception among the court's conservative wing.

Scalia likened the expansion to "an offer they can't refuse," while Kennedy said there's "no real choice."

Chief Justice John Roberts asked sharp questions of the attorneys on both sides. Not only is Obamacare

in danger of being struck down—and 16 million uninsured Americans losing coverage the law would

provide them through Medicaid—the legal basis for the federal government providing insurance to the

poor and elderly is in the crosshairs.

Conservatives came to the court hoping to strike the individual mandate. It now appears entirely

possible that they will kill the mandate, the law itself, and fundamentally curtail the federal

government's ability to control how states use its money. This would be like asking for a pony for

Christmas

and

actually

getting

it.

In the final moments, the arguments returned to first principles. Solicitor General Donald B. Verrilli, in an

attempt to recover from his halting performance Tuesday, urged the court in his final remarks to

consider the consequences of destroying the Affordable Care Act outright.

"There will be millions of people with chronic conditions like diabetes and heart disease, and as a result

of the health care that they will get, they will be unshackled from the disabilities that those diseases put

on them and have the opportunity to enjoy the blessings of liberty," Verrilli said. But that may not be

the kind of liberty members of this court consider important. Clement shot back that "It's a very funny

conception of liberty that forces somebody to purchase an insurance policy whether they want it or

not."

So the arguments ended where they started: Whether the greater deprivation of liberty is dying for lack

of affordable care, or being taxed into buying health insurance. For those Americans struggling to pay

their medical bills, Zombie Obamacare could be better than nothing.

But nothing is sounding like a real possibility.

#



54

22. http://www.telegraph.co.uk/news/worldnews/us‐politics/9172383/Barack‐Obamas‐healthcare‐

reforms‐on‐the‐line‐as‐Supreme‐Court‐weighs‐its‐decision.html

Barack Obama's healthcare reforms on the line as Supreme Court

weighs its decision The

US

Supreme

Court

today

considered

whether

to

strike

down

Barack

Obama's

entire

healthcare reform law, as the president's landmark domestic achievement looked increasingly in

peril.

March 28,2012

Daily Telegraph (UK)

By Raf Sanchez

On the third day of hearings into 'Obamacare' ‐ the reforms designed to provide health coverage to

millions of uninsured Americans ‐ several of the nine justices signaled that they believed the fate of the

whole law rested on the constitutionality of its most controversial element.

At the heart of Mr Obama's reforms is the individual mandate, a provision that forces Americans to buy

health insurance or else face a financial penalty. The court's conservative justices are deeply opposed to

the regulation, which they believe represents an overreach by the federal government.

In today's hearings, opponents of the law argued that if the individual mandate is struck down then all

other aspects of the Affordable Care Act must be struck down with it.

Paul Clement, a lawyer representing 26 Republican states opposed to the reforms, told the court: "If the

individual mandate is unconstitutional, then the rest of the act cannot stand."

His argument

met

a warm

reception

from

the

more

conservative

judges,

with

Justice

Anton

Scalia

saying

"if you take the heart out of this statute" then all its other provision must also fall.

Edwin Kneedler, a lawyer for the Obama administration, urged the court to reject his opponents'

"sweeping" claims that all elements of the law would be scuppered by the loss of the individual

mandate.

He said that other provisions ‐ including an expansion of the Medicaid programme for treating the very

poor and subsidies on health insurance for those on low incomes ‐ represented traditional areas of

government intervention and could stand regardless of the fate of the mandate.

His argument was supported by the court's more liberal judges. Justice Ruth Bader Ginsburg said she

favoured "a salvage job" which would allow Congress to decide the fate of the act's surviving elements,

rather than leaving them in the hands of unelected judges.

Jeffrey Toobin, one of the country's most influential legal experts, said the tone of the hearing indicated

serious dangers for the president's reforms.

"There's considerable sentiment on this court that it's all one big package and it needs to be got rid of

altogether, which is a stunningly bad turn of events for the Obama administration," he said.



55

The court is expected to give its ruling in June.

Today's discussion may prove only theoretical if the mandate is deemed constitutional, but in a critical

session yesterday five of the nine justices seemed to indicate they were prepared to knock down the

controversial regulation.

Both opponents and advocates of the law focused their attention on Justice Anthony Kennedy, the

Reagan‐appointee who is seen as the court's "swing vote" and who yesterday seemed to focus his

criticisms on the administration's case.

At one stage he interrupted Donald Verrilli, Mr Obama's solicitor general, to apparently express alarm at

the scale of the consitutional implications of the mandate.

"When you are changing the relation of the individual to the government in this, what we can stipulate

is, I think, a unique way, do you not have a heavy burden of justification to show authorisation under the

Constitution?" he asked.

As they

emerged

from

Tuesday's

hearing,

Republican

senators

and

attorney

generals

from

the

26

states

opposing Mr Obama's reforms seized on Justice Kennedy's questions as evidence they were closing in on

their goal.

Greg Abbott, the Attorney General of Texas, told the Telegraph: "Justice Kennedy was very clear in his

questions that he was concerned about the law's intrusion into individual liberty and the precedent it

would set for the limits on congressional power."

Liberal groups struck a more subdued note but Elizabeth Wydra, a lawyer for 500 state legislators who

support the reforms, said that conservatives had yet to lock down the votes of either Justice Kennedy

or Chief Justice John Roberts.

"I still see a way to gather a majority for upholding the constitutionality of the mandate and I think

that the conservative can count on three justices but I don't think they can count beyond that," she

said.

#



56

23. http://www.bloomberg.com/news/2012‐03‐29/secret‐vote‐opens‐health‐law‐review‐shaping‐

court‐legacy.html

Secret Vote Opens Health Law Review Shaping Court Legacy March 29, 2012

Bloomberg/Business Week

By Greg Stohr and Seth Stern

U.S. Chief Justice John Roberts will probably ask each of his eight Supreme Court colleagues gathered in

an oak‐paneled room tomorrow where they stand on the law that would expand health insurance to at

least 30 million Americans and affect one‐sixth of the economy.

The secret, preliminary vote, following the court’s standard practice, will kick off three months of

behind‐the‐ scenes deliberations on the fate of the law. The outcome will shape Roberts’s own legacy,

influence President Barack Obama’s re‐election prospects and potentially deepen the partisan gulf that

is already dividing the country.

“This is the defining case for this term and quite possibly the entire Roberts chief justiceship if they’re

going to strike it down,” said Sanford Levinson, a University of Texas law professor.

Almost six and a half hours of argument over the past three days cast doubt on the survival of the law’s

centerpiece requirement that individuals get insurance. The hearings made clear the justices are

splitting along ideological lines, much like a Democratic‐controlled Congress was when it enacted the

law in 2010 without a single Republican vote.

The court’s decision will mark the first time it has ruled on a president’s biggest legislative

accomplishment in the middle of his re‐election campaign. The measure is being challenged by 26 states

and a business trade group as exceeding Congress’s constitutional powers.

‘Breathtaking’ Moment

The outcome will hinge on Roberts and Justice Anthony Kennedy, said Susan Low Bloch, a constitutional

law professor at Georgetown University Law Center in Washington.

During arguments over the insurance requirement, both justices trained the bulk of their questions on

U.S. Solicitor General Donald Verrilli, the Obama administration lawyer who defended the law.

Roberts directed three‐quarters of his approximately 20 questions to Verrilli during that two‐hour

argument. Roberts said the health plan would “require people who are never going to need pediatric or

maternity services

to

participate

in

that

market.”

Kennedy said the law “changes the relationship of the federal government to the individual in a very

fundamental way” by forcing people to buy a product.

“It was breathtaking when Kennedy expressed as much skepticism as he did at the government’s

individual mandate,” said Ilya Shapiro, an opponent of the law and a senior fellow in constitutional



57

studies at the Washington‐based Cato Institute, which urges smaller government. “I almost began fist‐

pumping.”

Joining Forces

Should they conclude that the insurance requirement is unconstitutional, Roberts and Kennedy would

probably join three other Republican appointees ‐‐ Antonin Scalia, Clarence Thomas and Samuel Alito ‐‐

in a 5‐4 majority. The court’s four Democratic appointees all suggested they would vote to uphold the

law.

A decision that the insurance requirement is unconstitutional would require the justices to decide

whether to overturn some or all of the rest of the law as well. During arguments yesterday, the justices

suggested they would have to invalidate provisions that require insurers to cover people with pre‐

existing medical conditions.

The justices were divided on whether to go further and throw out the entire health‐care law. The court’s

Democratic appointees urged a limited ruling, and the Republican justices offered varying levels of

support for

toppling

all

provisions.

Not Over Yet

Supreme Court arguments can be deceiving. In 2009, a hearing suggested the court was poised to strike

down a central provision in the Voting Rights Act. In that argument, Kennedy pointed to a “great

disparity” in the way the act treated different states and said a government lawyer defending the law

bore “a very substantial burden.”

Three months later, the court produced a compromise, an 8‐1 decision that avoided ruling on the

constitutionality of the Voting Rights Act.

Still, the prospect of a similar compromise in the health‐ care case may have evaporated during the first

day of argument, when the justices suggested they aren’t inclined to postpone a decision until the law

goes into full effect.

The nine justices should have a clear sense of each other’s views tomorrow morning when, by tradition,

they will meet in their private conference room in a session closed even to their law clerks.

Sitting in their assigned seats ‐‐ with the chief justice at the head and the newest justice, Elena Kagan, by

the door in case anyone knocks with a message or a delivery ‐‐ they will discuss the case and then vote

in order of seniority, with Roberts going first.

Only the

Beginning

That meeting may be just the beginning of the wrangling. The justices at times shift their positions after

they take that initial vote. Kennedy, in particular, “has been known to change his mind” after reading

opinion drafts, said Michael Dorf, a Cornell University law professor who clerked for the justice.

From the public’s standpoint, the case will enter a quiet period until the justices release their decision,

probably at the end of June.



58

That announcement will mark Roberts’s biggest moment since President George W. Bush appointed him

chief justice in 2005.

Roberts said at his Senate confirmation hearing that year that he prefers to be known “as a modest

judge,” a job he compared with being a baseball umpire calling balls and strikes.

Consensus Building

Democrats have complained that Roberts hasn’t proven to be a consensus builder, joining 5‐4

conservative majorities in major cases involving school integration, abortion, and gun rights.

“More than any other case he’s faced so far, the Affordable Care Act litigation will define John

Roberts’s tenure and legacy,” said Doug Kendall, president of the Washington‐ based Constitutional

Accountability Center, which supports the law.

A ruling striking down all or part of the law would establish the Roberts court as a bulwark against

perceived overreaching

by

Obama

and

congressional

Democrats.

It

would

also

trigger

accusations

that

the court was engaging in “judicial activism.”

The justices themselves debated that notion yesterday while considering how much of the health‐care

law should survive if the insurance mandate is found to be unconstitutional.

Justice Sonia Sotomayor said throwing out an entire law when only one part has been ruled

unconstitutional is “sort of taking onto the court more power than one, I think, would want.”

‘New Regime’

Kennedy

countered

that

judicial

restraint

might

call

for

rejecting

the

whole

statute

if

the

insurance

requirement is voided. Cutting out just the coverage mandate would create “a new regime that

Congress did not provide for, did not consider,” Kennedy said. “That, it seems to me, can be argued at

least to be a more extreme exercise of judicial power than striking the whole.”

A decision striking down the mandate would also mark a new legal path for the Roberts court, which has

never before considered the limits of Congress’s power over interstate commerce. Roberts’s

predecessor and former boss, the late Chief Justice William Rehnquist, helped revive the idea that

Congress’s commerce power has limits.

Limiting Congressional Power

“Nobody really

realized

that

the

Roberts

court

majority

is

as

in

love

with

federalism

as

the

Rehnquist

court before it,” said Tom Goldstein, an appellate lawyer whose Scotusblog website, sponsored by

Bloomberg Law, tracks the court. “It looks like they may be very serious about recognizing limits on

Congress’s power.”

The public won’t get any more hints until the end of June.



59

“The Supreme Court is very good at keeping things under wraps,” said Adam Winkler, a constitutional

law professor at the University of California at Los Angeles School of Law. “The clerks won’t talk, the

justices won’t talk, no one will talk. We are all going to wait and see.”

#



60

COMMENTARY

1. http://www.law.com/jsp/nlj/PubArticleSCI.jsp?id=1202545586114&slreturn=1

Commentary: The minimum coverage provision — why challengers

should strike

out

with

the

Roberts

Court

March 14, 2012


(Reprinted on the Austin American‐Statesman op‐ed page, March 19, 2012)

By Elizabeth B. Wydra

Challengers to the constitutionality of the Affordable Care Act's minimum coverage provision have a lot

to be worried about as the U.S. Supreme Court prepares to hear arguments over three days at the end

of March. The surprise? They need to worry about the conservative justices just as much as they do the

more liberal members of the Court.

After all,

it

was

none

other

than

Justice

Antonin

Scalia

who

wrote

in

his

Gonzales

v.

Raich

concurrence

that Congress "may regulate even noneconomic local activity if that regulation is a necessary part of a

more general regulation of interstate commerce." That pretty much dooms the claim of health care

reform opponents that the failure to purchase insurance is noneconomic and thus not subject to

regulation under the Constitution's commerce clause. No one can seriously dispute that the Affordable

Care Act as a whole is a "general regulation" of the interstate health services market, which comprises

nearly 20 percent of our nation's economy.

As for the minimum coverage provision being "necessary" to the ACA's "more general regulation of

interstate commerce"? In U.S. v. Comstock, Chief Justice John Roberts Jr. two years ago joined an

opinion authored by Justice Stephen Breyer that affirmed the sweeping nature of the Constitution's

grant of

power

to

Congress

to

use

any

"means

that

is

rationally

related

to

the

implementation

of

a constitutionally enumerated power." Whether one thinks the mandate is good or bad policy, it is

difficult in good faith to say the minimum coverage provision is not "rationally related" to the

indisputably valid regulation of interstate commerce contained in the rest of the Affordable Care Act.

(Wondering where the Court's swing vote, Justice Anthony Kennedy, is on this? He joined Justice John

Paul Stevens' majority opinion in Raich, which was even more sweeping than Scalia's concurrence.)

The groundwork has been laid for conservative jurists to uphold the minimum coverage provision as

constitutional. In rejecting separate challenges to the act, George W. Bush appointee Jeffrey Sutton of

the U.S. Court of Appeals for the 6th Circuit and Reagan appointee Laurence Silberman of the D.C.

Circuit provided compelling, conservative arguments for the provision's constitutionality. There is good

reason to think that some of the Supreme Court's conservatives will follow suit.

After all, the conservative justices claim to be strict umpires for the text and history of the Constitution.

And, as Silberman concluded in his ruling for the D.C. Circuit, there is "no textual support" in the

Constitution for the challenges to the minimum coverage provision.

To the contrary, our Constitution's text and history demonstrate that the national health care crisis — in

which millions of Americans lack access to quality, affordable care — is the sort of national problem that

the framers of our founding charter wanted the federal government to have the power to solve. Our



61

Constitution was drafted in 1787 "in Order to form a more perfect Union" — both more perfect than the

British tyranny against which the founding generation had revolted and more perfect than the flawed

Articles of Confederation under which Americans had lived for a decade since declaring independence.

George Washington and the other delegates to the Constitutional Convention shared a conviction that

the Constitution must establish a national government of substantial power, in contrast to the

extremely weak central government of the Articles, which was so dysfunctional that Washington

thought it nearly cost us victory in the Revolutionary War.

In considering how to grant such power to the national government, the delegates to the Constitutional

Convention adopted a resolution declaring that Congress should have authority "to legislate in all Cases

for the general Interests of the Union, and also in those to which the States are separately incompetent,

or in which the Harmony of the United States may be interrupted by the Exercise of individual

legislation." In the health care cases, state legislators from each of the 50 states, the District and Puerto

Rico — among other voices from state and local governments — have told the Supreme Court that they

cannot fix the country's health care problem on their own and strongly support Congress' involvement.

Contrary to the challengers' claims that upholding the minimum coverage provision will have "dire"

consequences for our constitutional system of federalism, the ACA is a reflection of our nation's vibrant,

cooperative structure

of

government

in

which

the

federal

government

establishes

national

reform

mechanisms when necessary and states are left free to innovate when appropriate.

Any Supreme Court justice who is faithful to the Constitution's text and history, principles of federalism

and precedent — including decisions authored or joined by some of the current conservative justices —

should have no trouble upholding the minimum coverage provision as constitutional. To be sure, some

supporters of the minimum coverage provision will worry that the conservative Justices' presumed

political opposition to the mandate will cloud their view — and there is always the possibility that

Roberts' and Scalia's views on federal power will be less robust in a case that doesn't deal with

marijuana (Raich) or dangerous sex offenders (Comstock). But if these Justices follow precedent and

simply call "balls and strikes" under the lights of the Constitution, it will be the challengers to the

minimum

coverage

provision

who

strike

out

when

the

Court

hands

down

its

ruling

this

summer.

Elizabeth B. Wydra is chief counsel at the Constitutional Accountability Center. She represents more than

500 state legislators from all 50 States, the District of Columbia and Puerto Rico in the health care cases

before the Supreme Court, and has filed briefs supporting the ACA's minimum coverage provision and

expansion of Medicaid.

#



62

2. http://www.nytimes.com/roomfordebate/2012/03/25/on‐the‐health‐care‐law‐is‐the‐court‐being‐

thoughtful‐or‐partisan/conservative‐precedents‐support‐the‐affordable‐care‐act

Precedents Support This Law

MARCH 26, 2012

New York

Times

By Elizabeth Wydra

Elizabeth Wydra is chief counsel for the Constitutional Accountability Center and is representing more

than 500 state legislators from all 50 states in support of the constitutionality of the health care law.

With 26 states challenging the president’s signature piece of legislation, it is not inappropriate for the

Supreme Court to schedule six hours of argument to ensure all points are thoroughly considered and

vetted, given the complexities of the statute and the number of claims made against it. But the strength

of the challenges do not justify the length of the argument. The Constitution’s text and history, as well

as Supreme Court precedent from the founding to the present, clearly support Congress’s authority to

pass the Affordable Care Act, including its “individual mandate.”

Two conservative court of appeals judges provided compelling, conservative arguments for the

mandate’s constitutionality.

While the Roberts court has not hesitated to reach broadly when it could have gone narrow — see

Citizens United — the justices are undoubtedly aware that the eyes of the American public are upon

them. Conservative justices like John Roberts and Antonin Scalia and the swing voter Anthony Kennedy

will find it difficult to avoid the force of opinions supporting federal power that they either wrote or

joined — even if they might be politically, privately opposed to the health care reform law.

The groundwork has been laid for conservative jurists to uphold the mandate. Two conservative court of

appeals judges — the George W. Bush appointee Jeffrey Sutton from the Sixth Circuit and the Ronald

Reagan appointee

Laurence

Silberman

from

the

D.C.

Circuit

—

provided

compelling,

conservative

arguments for the mandate’s constitutionality.

Each justice on the high court, whether liberal or conservative, has pledged fidelity to the Constitution.

Indeed, the conservative justices claim to be strict “umpires” for the text and history of the Constitution.

As Judge Silberman concluded in his ruling for the D.C. Circuit, there is no support in the text of the

Constitution for the challenges to the mandate. No matter how many innings in the game, eventually

opponents of the Affordable Care Act should strike out before the Supreme Court.

#



63

3. http://www.usnews.com/debate‐club/should‐the‐supreme‐court‐overturn‐obamas‐healthcare‐

law/founding‐fathers‐would‐approve‐of ‐national‐healthcare‐policy

Founding Fathers Would Approve of National Healthcare Policy March 26, 2012

U.S. News

&

World

Report

By ELIZABETH B. WYDRA

About Elizabeth B. Wydra: Elizabeth Wydra is chief counsel for the Constitutional Accountability Center,

a think tank, law firm, and action center dedicated to fulfilling the Constitution's progressive promise. A

frequent commentator for broadcast and print media, Elizabeth regularly participates in Supreme Court

litigation, and was a law clerk for Judge James R. Browning of the U.S. Court of Appeals for the 9th

Circuit.

Our Constitution's text and history demonstrate that the national healthcare crisis—in which tens of

millions of Americans lack access to quality, affordable care—is the sort of national problem that the

framers of our founding charter wanted the federal government to have the power to solve.

Our Constitution was drafted in 1787 "in Order to form a more perfect Union"—both more perfect than

the British tyranny against which the Founding generation had revolted and more perfect than the

flawed Articles of Confederation under which Americans had lived for a decade since declaring

independence. George Washington and the other delegates to the Constitutional Convention shared a

conviction that the Constitution must establish a national government of substantial power, in contrast

to the extremely weak central government of the Articles, which was so dysfunctional that Washington

thought it nearly cost us victory in the Revolutionary War. (George Washington was also apparently fine

with government mandates—he signed into law the 1792 Militia Act, which required young men to

outfit themselves with a musket, knapsack, and, in some cases, a serviceable horse.)

Under our

enduring

Constitution,

Congress

has

the

express

constitutional

authority

to

regulate

interstate commerce—the healthcare industry comprises nearly 20 percent of our nation's economy—

and tax and spend for the general welfare, as well as the broad power to pass laws that help execute

these specific grants of authority.

Given the Constitution's grant of significant authority to the federal government to act in the interests of

the country as a whole, it is no surprise that a majority of the lower court judges who have ruled on the

healthcare law have upheld it, including prominent conservative judges. Reagan‐appointee Judge

Laurence Silberman on the D.C. federal appeals court explained that the attacks on the law have no

support "in either the text of the Constitution or Supreme Court precedent." Another conservative

appeals court judge, Jeffrey S. Sutton—who clerked for Supreme Court Justice Antonin Scalia—explained

that whether

you

think

the

law

is

good

policy

or

not,

it

clearly

passes

constitutional

muster.

If the Supreme Court Justices are faithful to the Constitution's text and history, principles of federalism,

and precedent—including decisions authored or joined by some of the current conservative Justices—

the Court should conclude the healthcare law is constitutional.

#



64

4. http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202546956823

ACA at the Supreme Court: Instant commentaries March 26, 2012


By Elizabeth

Wydra

ACA: DAY ONE

…Very likely the Court will rule now on ACA's merits

For all the excitement outside the Supreme Court, the courtroom this morning was surprisingly

subdued, as the justices considered the somewhat dry issue of the Anti‐Injunction Act (AIA). Indeed, a

few of the justices appeared dangerously close to nodding off. That said, it appeared from the questions

this morning that the justices are not eager to delay ruling on the merits of the constitutional challenge

to the Affordable Care Act (ACA). Many of the justices questioned whether the AIA is, in fact,

jurisdictional, and if they could accept the government's position that the Anti‐Injunction Act does not

prevent a decision on the merits at this point. The bottom line is that it looks very likely that the Court

will not delay a ruling on the constitutionality of the mandate until the provision goes into effect in

2014. For the American people, and the state leaders who are already working to implement the

Affordable Care Act in the states, this is good news. — Elizabeth Wydra, chief counsel, Constitutional

Accountability Center

#



65

5. http://www.huffingtonpost.com/elizabeth‐b‐wydra/who‐really‐represents‐the_b_1381334.html

Who Really Represents the States in the Health Care Cases? March 27, 2012

Huffington Post

By Elizabeth

Wydra

When the Supreme Court hears arguments in the challenges to the Affordable Care Act this week, who

will be speaking for the states? This isn't a trick question: obviously, Paul Clement, the former Solicitor

General for George W. Bush, will be standing before the Justices on behalf of the 26 states challenging

the constitutionality of the Affordable Care Act. But while Clement has received plenty of attention for

lending his considerable talents to the ACA challenge and other conservative legal causes‐‐glowing

profiles, geek‐chic photo spreads‐‐scant attention has been paid to the fact that Clement's clients do not

actually represent the views of the states as a whole on whether the health care reform Act is

constitutional. Despite the tea‐party‐friendly "states' rights" rhetoric of the attacks on the ACA, many

states and state legislators have been saying "don't tread on me" to the Act's challengers. Thirteen

states and more than 500 legislators from each of the 50 states have filed briefs with the Supreme Court

strongly disagreeing with the challenger states' legal position and their flawed, historically‐inaccurate

view of federalism.

For example, pro‐reform states filed a powerful brief in the Supreme Court explaining why it is difficult

for individual states to reform the healthcare industry on their own. Speaking from experience,

Massachusetts, in a separate brief, backed up Congress's use of an individual mandate as part of its

regulation of the healthcare industry, which comprises nearly 20 percent of our nation's economy. As

much as presidential‐hopeful Mitt Romney might like to forget it, Massachusetts's healthcare plan‐‐

individual mandate and all‐‐was a model for the Affordable Care Act. With on‐the‐ground knowledge,

the state has supported Congress's decision to impose the individual mandate. As the pro‐reform state

legislators have told the Supreme Court, federal health care reform "was imperative for Americans, as

well as

for

their

State

and

local

governments,"

and

they

couldn't

have

done

it

alone.

Pro‐reform states have also blasted the challenger states' notion that the ACA is some novel intrusion on

state regulation of health care by noting that the states and the federal government have been working

together to implement healthcare policy for at least the last half ‐century. The federal government has

been involved in the healthcare industry through the Veterans Administration and Medicare, among

other programs, and by giving money to the states to help them provide healthcare to low‐income

Americans through Medicaid.

Of course, the challenger states argue that the Act's expansion of Medicaid to cover approximately 16

million more low‐income Americans is unconstitutional. Less attention has been paid to this aspect of

the healthcare

reform

challenge

than

to

the

claims

against

the

individual

mandate,

but

it

could

be

the

"sleeper issue" of the case. The challenger states have argued that requiring states to do certain things

as a condition of federal funding‐‐in this case, using federal Medicaid money to cover millions more

needy Americans‐‐unconstitutionally "coerces" states into doing the federal government's bidding.

While this argument went nowhere in the lower courts, now that the Supreme Court has decided to

hear the issue, Americans should take it seriously.



66

To be sure, the basic flaws in the challenger states' "coercion" argument make it difficult to take too

seriously. Medicaid is and always has been a wholly voluntary partnership between the federal

government and the states. It's difficult to say that something is coercive when it is entirely voluntary.

It's even harder to say that the Act's expansion of Medicaid burdens the states when the federal

government will foot the bill for 100 percent of the expansion, eventually tapering off to 90 percent

support after 2020. Nonetheless, the challenger states are arguing that this deal is too good‐‐an offer they can't refuse‐‐and they have no choice but to accept federal Medicaid money and whatever strings

come attached.

A large number of state leaders are calling this nonsense. Turning down the Act's Medicaid expansion

and federal funds might not be a smart choice‐‐although Texas Governor Rick Perry has considered it‐‐

but it is certainly a possible choice. As the pro‐reform state legislators told the Court in their brief, states

"must now choose whether to comply with the new Medicaid requirements, or exercise their right to

opt out of the program altogether." The challenger states should not expect the courts to help them

hide from a politically painful decision.

When the

Justices

hear

the

six

hours

of

argument

on

the

constitutionality

of

healthcare

reform

this

week, there will no doubt be much talk about "states' rights." But it is important to remember that the

lawyer for the 26 challenger states doesn't truly represent "the states" v. the federal government. Many

other state leaders‐‐including some within the challenger states‐‐think that healthcare reform is not only

constitutional, but also a great step forward for their states and their citizens. And many state leaders

also believe that when it comes to states' rights and healthcare reform, the states challenging the

Affordable Care Act are not right at all.

#



67

6. http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202546956823

ACA at the Supreme Court: Instant commentaries March 28, 2012


By Elizabeth

Wydra

ACA: DAY THREE

…A close vote, no matter which way the case goes

Justice Kagan started off the questioning of Paul Clement with a very practical and powerful observation

about the ACA's expansion of Medicaid to provide millions of needy Americans access to health care:

Why would the states feel coerced when the federal government is giving them "a boatload" of federal

money to spend on "poor people's health care"? Justice Ginsburg followed up with the trenchant

observation that, in fact, many states and state leaders (including the more than 500 state legislators

from every state in the country, whom I represent) support the Medicaid expansion and, rather than

feeling unconstitutionally coerced, think the expansion is a great deal for the states and their citizens.

While the ACA's Medicaid expansion is an unquestionably generous deal for the states, it nonetheless

remains true that states are free to turn down the "boatload" of money the federal government

proposes to give them to expand Medicaid coverage‐Texas governor Rick Perry has publicly considered

it‐even if to do so would likely incur the displeasure of their constituents. But that's basic political

accountability, which Justice Kennedy, in particular, appeared concerned with.

Of course, there were tough questions asked of both advocates during the Medicaid argument. Indeed,

over the past three days, the justices have asked tough questions of both sides. But in the lower courts,

conservative Judge Silberman in the DC Circuit and former Scalia clerk Judge Sutton in the Sixth Circuit

also asked difficult questions of both sides, before ultimately voting to uphold the ACA and its minimum

coverage provision.

It's

pretty

clear

that,

whichever

way

the

case

goes,

it

will

be

close.

Chief

Justice

Roberts and Justice Kennedy seem to be in play for both sides.

Chief Justice Roberts' professed desire for "judicial restraint" should push him closer to the side of the

Administration (although sometimes Roberts' commitment to restraint seems to be MIA, as we saw in

Citizens United). As Verrilli made clear with his powerful closing remarks, if the Court does strike down

the Act, it will mark a radical shift in the Constitution's governmental structure, in which the courts defer

to the policy choices made by the democratically elected representatives of the people. At times, some

of the justices‐notably Justice Scalia‐appeared to let their politics get the better of constitutional text

and precedent. But as several of the justices affirmed over the course of the arguments, the courts are

not authorized to sit as a "mini‐Congress," second‐guessing whether a law is good or bad policy. The

Court's job,

as

Verrilli

emphasized

in

his

final

remarks,

is

to

apply

the

Constitution

and

recognize

the

broad powers given to the federal government by our Founding charter, which squarely support the

constitutionality of the healthcare reform law. If people (including private citizen Antonin Scalia) don't

like the Affordable Care Act, their recourse is at the ballot box, not in the courts. — Elizabeth Wydra,

chief counsel, Constitutional Accountability Center

#



68

BLOGS

1. http://go.bloomberg.com/health‐care‐supreme‐court/2012‐03‐20/medicaid‐expansion‐sleeper‐

issue‐of ‐health‐care‐cases/

Medicaid Expansion

“Sleeper

Issue”

of

Health

Care

Cases

MARCH 20, 2012

BLOOMBERG LAW

BY EDWARD ADAMS

If the U.S. Supreme Court decides that President Obama’s health care reform law’s expansion of

Medicaid is “coercive” toward the states, it could endanger government programs entirely unrelated to

health care, reports Bloomberg News’ Amanda Crawford.

“If they buy the more fundamental claim by states that this is coercive, not only would that cast doubt

on the constitutionality of Medicaid as we know it, it would also cast doubt on a huge number of other

spending programs,”

said

I. Glenn

Cohen,

an

assistant

professor

at

Harvard

Law

School

who

wrote

about

the issue in the New England Journal of Medicine.

Reversal of the Medicaid expansion could “expose laws such as the Clean Air Act [and] the No Child Left

Behind education law to judicial challenge,” the story says.

“The Medicaid expansion issue is the real sleeper issue of the health‐care challenge,” says Elizabeth

Wydra, chief counsel for the Washington‐based Constitutional Accountability Center, who represents

state lawmakers supporting the health‐care law. “The states’ arguments have the potential to open

Pandora’s Box. While they only want to limit their argument here to Medicaid expansion in the

Affordable Care Act, I think the consequences of their argument are much more extreme than that.”

#



2. http://go.bloomberg.com/health‐care‐supreme‐court/2012‐03‐28/live‐blog‐wednesdays‐health‐care‐

arguments/

Live Blog: Wednesday’s Health Care Arguments MARCH 28, 2012

BLOOMBERG LAW

BY EDWARD ADAMS

…. 7:35 a.m. Were yesterday’s arguments merely an example of lawyers’ contrasting styles, or

contrasting effectiveness? The National Law Journal provides a review of how both sides fared.

An example of the criticism unleashed on Solicitor General Donald Verrilli came from CNN commentator

Jeffrey Toobin, who said the argument was a “train wreck” for the government. Toobin asserted that

Verrilli had done a “simply awful” job and was not “ready with good answers,” the paper reports.

The site Buzz Feed even put together a tape of some of Verrilli’s argument lowlights:

But the difference may be more about optics than effectiveness, defenders of Verrilli told the paper:

But just as quickly, supporters of the law came to Verrilli’s defense, asserting that the

contrasting styles of the lawyers who argued Tuesday should not obscure the fact that the SG

had made all the points he had intended to make in defense of the law as a constitutional

approach to solving a national economic problem. “Don is little more formal, more

understated, but at the end of the day, he did an admirable job,” said Douglas Kendall of the

Constitutional Accountability Center, which supports the law. Kendall also said press coverage

of the arguments has overlooked the fact that Chief Justice John Roberts Jr. and Anthony

Kennedy questioned Clement and Carvin skeptically, making them possible votes for the

government’s position.

###

Documents

Health Care - CAC ACA Clips - March 15-29 2012 Updated