January 2011

The bill, as widely reported, is symbolic, for it stands no chance of advancing in the Senate. But Congress, which as Matt Taibbi notes in an insightful piece in Rolling Stone on the new House Speaker John Boehner "ranks as one of the single most unpopular political entities on earth," is hardly known for its efficient use of time. So the vote occurred, with all House Republicans and three Democrats, joining in the call for trashing health care reform.

As TPM reports Rep. Michele Bachmann, a loud critic of the Obama administration, and Tea Party favorite, said on the House floor that repealing the health care law, a "crown jewel of socialism," was the reason why right-wing politicians took control of the House. "This is not symbolic," she said, "this is why we were sent here and we will not stop until we repeal a president and put a president in the position of the White House who will repeal this bill, until we repeal the current Senate, put in a Senate that will listen to the American people and repeal this bill."

Rep. John Lewis, however, scored his colleagues for the posturing. "It is unbelievable that with so many people out of work and millions of people uninsured, the first act of this new Congress is to take health care away from people who just got coverage," he said.

On the Senate side, Minnesota Sen. Al Franken blasted the House for a "misguided effort." In a statement, Franken (pictured), who provided a keynote address at the 2010 ACS National Convention, said, "This law already has done a lot of good for a lot of people: it's eliminated lifetime caps on insurance, given kids the ability to stay on their parents' plans until they're 26, closed the prescription drug ‘doughnut hole' for our seniors, and prevented insurance companies from denying children coverage because of a pre-existing condition. Beyond that, it cuts the deficit and allows more small businesses to cover their employees because of the tax credits the law provides."

Earlier this week, more than 100 law professors signed a statement supporting one of the health care law's most challenged provisions, the one that requires individuals, starting in 2014, to maintain health care insurance or pay a "penalty."

The statement, in part, reads:

Nothing in the Constitution's text, history, or structure suggests that, in exercising its enumerated powers, Congress is barred from imposing reasonable duties on citizens on the theory that such requirements amount to regulating "inactivity." Indeed, the Framers would be surprised by this view of Congress's powers; they enacted an individual mandate in the Second Militia Act of 1792, which required all men eligible for militia service to outfit themselves with a military style firearm, ammunition, and other equipment, even if such items had to be purchased in the marketplace. Today, individuals are still obligated by federal law to perform other actions, like serve on juries, file tax returns, and register for selective service, among other duties.

For more on the constitutionality of the health care law's minimum coverage provision, see an ACS Issue Brief explaining its constitutionality by the National Senior Citizens Law Center's Simon Lazarus.

The issue before the Court is whether the government can invoke state secrets privilege to prevent a superior knowledge defense in a civil suit.

Plaintiffs argue that their 1988 contract to develop stealth technology for the A-12 Avenger relied on the government subsequently providing classified, technical information. The government's failure to do so resulted in the companies' inability to meet their development schedule.

The government's contracting officer found default termination of the contract and demanded the return of unliquidated damages-defined broadly by the Acting Solicitor General during oral argument as claims not approved by the government, in this case, some $1.35 billion.

The key problem with the plaintiffs' position is that there is no language in the contract indicating that the contractors were to receive specialized information from the government. To the contrary, the government set up a competitive situation, awarding pre-contracts to two teams, to see who could develop the most impressive stealth technology. As Acting Solicitor General Neal Katyal noted, the contract was to acquire technology, not to provide it.

Katyal asserted that the courts should not be in the business of interfering in contract law, where sophisticated parties had the obligation to include any unwritten assumptions into the contract itself.

He further stated that plaintiffs' failure to perform, explicitly contemplated in the language of the agreement, established the contracting officer's right to determine default. In light of Totten, plaintiffs had been on notice that state secrets may be asserted in subsequent suits.

Herein lies the rub: Mr. Carter Philips, who argued for General Dynamics and Boeing, suggested that the government could not claim default termination and then hide behind state secrets when the contractors attempted to bring a superior knowledge defense. As the moving party, the government was in a position akin to that of a prosecutor in a criminal case-indeed, the money at stake was substantial: between $1.35 billion and $5 billion, depending upon the immediate calculus employed. Reynolds did contemplate such a situation and recognized that the government could not have it both ways.