Affordable Care Act

  • April 9, 2012

    by Jeremy Leaming

    Pundits, especially those on the Right, claim President Obama’s recent comments that the Supreme Court should not lightly invalidate a law regulating commerce – in this case the Affordable Care Act – reveal a former constitutional law school professor who doesn’t understand judicial review. (Or according to this Washington Post piece, the president was employing language intended to mislead.)

    Actually the president’s words, despite the over-the-top reactions from pundits, were not terribly difficult, even for non-lawyers, to discern. Obama was merely pointing out that the Supreme Court has not, and should not, easily invalidate laws by Congress, especially those that regulate commerce. Attorney General Eric Holder in a letter to a federal appeals court, also said the president’s comments were grounded in principle, not hyperbole.

    In a guest column for the Jurist, law school professor Craig Jackson takes note of commentary from MSNBC’s Joe Scarborough and The Wall Street Journal’s editorial page blasting the president’s comments, and argues that Obama had not “forgotten the basic rule,” of judicial review.

    Instead Jackson says the president’s comments “had more to do with arguments that have been lobbed back and forth over judicial review, advising judicial restraint, for over two centuries ….” Plenty, Jackson, notes has been written about the need for federal courts to show restraint when considering challenges to laws passed by Congress.

    “The president of course agrees and is certainly not stepping out of mainstream constitutional law discourse to suggest that the Court exercise a little discretion when dealing with decisions by a political majority,” Jackson write.

  • April 5, 2012

    by Jeremy Leaming

    President Obama’s warning that the Supreme Court should avoid destroying health care reform has not only irked a federal appeals court judge, but has spurred Republican leaders in the Senate to rush to the defense of the lifetime-appointed justices.

    Responding to a reporter’s question about oral arguments in HHS v. Florida, where Justice Antonin Scalia embraced the simplistic broccoli argument, Obama said the high court would be ignoring precedent if it were to invalidate or greatly hobble the Affordable Care Act. The president noted that Supreme Court precedent holds that Congress has broad power to regulate commerce and to tax and spend for the general welfare. “That’s not just my opinion, by the way,” Obama said. “That’s the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices who said this wasn’t even a close call.” (Obama was referring to appeals court Judges Laurence Silberman and Jeffrey Sutton, who ruled that the health care law’s integral measure -- the minimum coverage provision -- was a valid exercise of Congress’ power to regulate interstate commerce.)

    As TPM reported, the president’s defense of the health care law apparently prompted Judge Jerry Smith of the U.S. Court of Appeals for the Fifth Circuit presiding in a challenge to a part of the Affordable Care Act to demand that Attorney General Eric Holder submit a letter to the appeals court stating the administration’s understanding of judicial review.

    Holder responded in a letter to the appeals court judges in Physician Hospitals of America v. Sebelius that the DOJ “has not in this litigation, nor in any other litigation of which I am aware, ever asked this or any other Court to reconsider or limit long-established precedent concerning judicial review of the constitutionality of federal legislation.”

    Holder noted that the question of judicial review was resolved in the 1803 case of Marbury v. Madison.

    The attorney general also reminded the Fifth Circuit judges that judicial review was not an issue in the case before them.

  • April 4, 2012

    by Jeremy Leaming

    The right-wing challengers of the Affordable Care Act have spent more than a year honing the broccoli argument – if the federal government can require people to buy health care insurance then our fragile liberty will crumble because the monstrous federal government will order us all to buy broccoli, gym memberships and, well, who knows what else.

    Last week’s oral argument in HHS v. Florida revealed that the broccoli argument is seemingly being taken seriously by more than just libertarian law professors, such as Georgetown’s Randy Barnett. Justice Antonin Scalia aped right-wing talking points when he pelted Solicitor General Donald Verrilli’s defense of the ACA’s minimum coverage provision, which will require some people to carry a minimum amount of health care insurance starting in 2014, with the, ‘oh hell-broccoli-is-next,’ argument.

    But former Mich. Gov. Jennifer Granholm (pictured) hopes the Supreme Court’s conservative justices can get up-to-speed on how the health insurance market works, and consider how invalidating the landmark law will impact the lives of tens of millions of Americans who do not have the luxuries the high court justices enjoy. 

    Granholm’s hope, however, may likely be too much of a stretch, especially for a conservative majority that found a way to run roughshod over longstanding precedent in Citizens United v. FEC, giving corporations unfettered ability to influence campaigns.  

    Granholm, a speaker at the 2009 ACS National Convention, writing for Politico focuses on her hairdresser, Carmelita, who explained to Granholm that she already participates in the health care insurance market, albeit in a manner that leaves her wishing she could afford health care insurance.

    Carmelita’s employers do not provide health care insurance, and she can’t afford to purchase coverage. “It’s just too expensive,” she said. “No way I can afford it.”

    But if she could afford it, she would gladly purchase it, because she’s still “paying off a $3,000 health care bill from last year when I had walking pneumonia and finally went to see the doctor. They ordered an X-ray of my chest, and my life hasn’t been the same since, trying to pay that medical bill. Of course, I’d have health insurance if I could afford it! Anybody would.”

  • April 2, 2012

    by Jeremy Leaming

    A Supreme Court opinion striking health care reform would be indefensible and widely perceived as political said former Solicitor General Walter Dellinger at a recent ACS briefing on last week’s oral arguments in HHS v. Florida.

    Dellinger’s sentiment is echoed in an editorial from The New York Times, which said the oral arguments in the health care reform case should put to rest the widely held belief that “legal conservatives are dedicated to judicial restraint ….” For the Roberts Court, The Times continued, has proven to be a judicial entity ready to “replace law made by Congress with law made by justices.”

    The Times’ editorial continued, “Established precedents support broad authority for Congress to regulate national commerce, and the health care market is unquestionably national in scope. Yet to Justice Kennedy the mandate requiring most Americans to obtain health insurance represents ‘a step beyond what our cases have allowed, the affirmative duty to act, to go into commerce.’ To Justice Breyer, it’s clear that ‘if there are substantial effects on interstate commerce, Congress can act.’”

    President Obama fielding questions from reporters following a news conference with Canadian Prime Minister Stephen Harper and Mexican President Felipe Calderon, issued concern about a high court opinion invalidating the Affordable Care Act, Politico reported.

    “I just remind conservative commentators that for years we’ve heard that the biggest problem is judicial activism or a lack of judicial restraint,” Obama said. “That a group of people would somehow overturn a duly constituted and passed law. Well, this a good example. And I’m pretty confident that this court will recognize that and not take that step.”

    The president said his confidence was based on “precedent out there. That’s not just my opinion, by the way. That’s the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices who said this wasn’t even a close call.”

  • March 30, 2012

    by Jeremy Leaming

    Before this week’s marathon oral arguments in the case challenging health care reform, many legal scholars, had strongly argued that the challengers’ arguments did not have a serious chance of surviving Supreme Court scrutiny.

    Primarily the reasoning was based on high court precedent in favor of a broad reading of Congress’ power to regulate commerce and to tax and spend for the general welfare.

    But those perceptions have been rocked following three lengthy days of oral argument, in which Justices Antonin Scalia and Samuel Alito appeared to have bought the challengers’ arguments against the minimum coverage provision, and, at times, revealed utter callousness toward national lawmakers’ attempt to reform a terribly inefficient and exclusive health care system that has left tens of millions uninsured.

    Moreover as The New York Times columnist Paul Krugman noted, several of the justices appeared utterly or willfully ignorant of how “insurance works.” Krugman said Scalia’s comparison of purchasing health care insurance to buying broccoli “horrified health care experts all across America because health insurance is nothing like broccoli.”

    “Why? When people choose not to buy broccoli, they don’t make broccoli unavailable to those who want it. But when people don’t buy health insurance until they get sick – which what happens in the absence of a mandate – the resulting worsening of the risk pool makes insurance more expensive, and often unaffordable, for those  who remain. As a result, unregulated health insurance basically doesn’t work, and never has,” Krugman wrote.

    Walter Dellinger, former Solicitor General, at an ACS briefing on the oral arguments in HHS v. Florida, said it appeared, based mostly on their questions that three justices look ready to strike the minimum coverage provisions. Justice Samuel Alito’s questions were almost as hostile as Scalia’s and most, including Dellinger, believe Justice Clarence Thomas will vote to invalidate the law’s integral provision.

    But Dellinger (pictured) is still holding out hope that two more justices will not join those three in killing health care reform.

    “If there were five,” he said, “I would be shocked, because I think it would take us back to the jurisprudence of the 1920s. I think it would be the most stunning and indefensible judicial decision in half a century. It would be paired with Bush v. Gore in the law books forever.”