Will Conservative Majority Expand Supreme Court’s Power, and Trash Health Care Reform?

March 28, 2012

by Jeremy Leaming

So it appears just based on oral argument action, if you believe pundits, such as CNN’s Jeffrey Toobin that the high court’s conservative justices are ready to trash precedent and accept the simplistic arguments of the challengers that the Affordable Care Act’s minimum coverage provision is a wild overreach by the federal government.

As noted in this ACSblog post, UCLA constitutional law professor Adam Winkler says we shouldn’t be surprised that the high court’s right-wing majority may be leaning this way. It has already proved it has no problem shunning precedent or being out-of-touch, for example see Citizens United v. FEC.

In a piece for The Huffington Post, ACS President Caroline Fredrickson argued against the idea that the minimum coverage provision is “unprecedented,” as its challengers like to call it.

“What is truly radical,” Fredrickson says, “is the economic theory the state and individual challengers are pushing, which calls for a greatly limiting the ability of Congress to address national concerns. It’s an argument that longs for the days when courts actively shut down congressional attempts to solve national problems.”

Geoffrey Stone, a constitutional law expert and a member of the ACS board, explains, also in a Huffington Post article, why the law’s minimum coverage provision, which will require Americans who can afford to do so to starting carrying health care insurance in 2014, is seemingly so unappealing to the high court’s conservative wing. Primarily the conservative wing appears to be obsessed with a slippery slope – if folks can be required to purchase health care insurance then what’s next?

Stone notes that the “slippery slope is a means of reasoning, not a conclusion. Every principle and decision has a slippery slope: The question is whether we can get off the slope before it reaches bad outcomes. In this instance, this is easy. The decisions of millions of individual Americans not to purchase health insurance (even though they can afford it) have a dramatic impact on the cost of health care for everyone else and on interstate commerce. This is clearly an appropriate matter for federal attention under the Commerce Clause.”

Some of the justices, as Stone notes, aped the arguments of the challengers – Congress will surely now mandate that we all buy broccoli or gym memberships or burial insurance. “If the decisions of individuals not to eat broccoli and not to buy burial insurance had similar effects on interstate commerce, then it might also be appropriate for the national government to intervene. But the hypotheticals are, quite frankly, ridiculous. They are bad arguments to which any first-year law student knows the answer. If the conservative justices, who are, after all, very good lawyers, rely on such arguments to defend a decision to invalidate the Affordable Care Act, then we know something else is going on.”

The New York Times also lashed into the right-wing justices for their apparent fondness for a “view that wrongly frames the mechanism created by this law. The insurance mandate is nothing like requiring people to buy broccoli – a comparison Justice Antonin Scalia suggested in his exasperated questioning of Solicitor General Donald Verrilli Jr. Congress has no interest in requiring broccoli purchase because the failure to buy broccoli does not push the cost onto other in the system.”

The justices heard final rounds of oral argument today, focusing on severability, if the one provision of the law is invalidated, such as the minimum coverage provision, will the entire law fall, and the law’s provision expanding Medicaid.

SCOTUSblog’s Lyle Denniston writes that the law’s Medicaid expansion appears on treacherous ground. “Unless a closing oration by a top government lawyer stirs some real sympathy for the poor, [the Medicaid expansion is an attempt to extend to coverage to larger swath of the population who are uninsured], the new health care law’s broad expansion of the Medicaid program that serves the needy may be sacrificed to a historic expression of judicial sympathy for states’ rights.”