health care oral argument

  • July 3, 2012
    Humor

    by John Schachter

    When my son was maybe six years old, he learned an important life lesson: when you start an apology with the words, “I’m not really sorry,” it doesn’t count as an apology. Unfortunately, in his almost 63 years, Bill O’Reilly has yet to grasp that valuable rule.

    In late March, when the U.S. Supreme Court was hearing oral arguments on the constitutionality of the Affordable Care Act, O’Reilly had ACS President Caroline Fredrickson on his show to “discuss” the issue. Much of the so-called discussion consisted of O’Reilly condescendingly lecturing Fredrickson with faulty analysis, but she was able to calmly explain how the taxing power could very well support the law’s constitutionality.

    O’Reilly staked his ground (and reputation) quite clearly when he said, “Ms. Fredrickson, you are going to lose and your arguments are specious … and it's going to be 5 to 4. And if I'm wrong, I will come on, and I will play your clip, and I will apologize for being an idiot.”

    When he returned to his show from vacation four days after the high court’s ruling, O’Reilly addressed the issue, which mainstream and social media representatives had been highlighting for days.

    I’m not really sorry,” he opened.

    “But I am a man of my word,” O’Reilly continued, showing no apparent recognition of the irony. “So I apologize for not factoring in the John Roberts situation. Truthfully, I never in a million years would thought the chief justice would go beyond the scope of the commerce clause to date and into taxation. I may be an idiot for not considering that.”

    (Childhood translation: “Billy, tell your sister you’re sorry.” “OK. I’m sorry … that she’s such a jerk.”)

  • June 26, 2012

    by Jeremy Leaming

    The White House need not look far in placing blame if the Supreme Court issues an unfavorable ruling on its signature domestic achievement, writes Simon Lazarus for The New Republic.

    We’ll likely know Thursday whether the Obama administration’s landmark health care reform law, the Affordable Care Act, is invalidated or greatly hobbled by the Supreme Court. If that is the outcome, Lazarus, senior counsel to the Constitutional Accountability Center, writes that “leading Democrats” are primarily to blame for failing to defend the constitutionality of the law. They “didn’t even try,” he writes.

    Quickly after the Republican politicos lodged lawsuits against the ACA, and in particular the law’s minimum coverage provision, right-wing activists and libertarians went about methodically convincing the pubic that their constitutional attacks were legitimate.

    The Right’s legal arguments may have been “legally flimsy,” but they also lent themselves to easily “digestible sound-bites” that eventually helped move the public against the landmark law. The simplistic liberty based argument – if the federal government can mandate individuals to purchase a small amount of health care insurance, then its power is unlimited – was also seemingly adopted by Justice Antonin Scalia during oral arguments in the case.

    But liberals’ failure to defend the constitutionality of the health care law was not a unique stumble, Lazarus says.

  • May 30, 2012

    by Jeremy Leaming

    The arguments lodged against the health care law’s minimum coverage provision have been described by constitutional law experts as radically libertarian or terribly misguided. But during oral argument before the Supreme Court, the right-wing bloc, led by Justice Antonin Scalia appeared eager to endorse the challengers’ arguments against an integral provision of the Affordable Care Act. We’ll likely know sometime in June whether the high court’s conservative wing was indeed persuaded by the challengers’ arguments.

    In a guest post for Balkinization, Rob Weiner, a partner at Arnold & Porter LLP, provides greater detail to the attacks on the health care law’s minimum coverage provision writing they “reflect an effort to codify nostalgia as legal doctrine.” 

    The “most obvious throwback” is the liberty argument, Weiner says. Opponents of the health care law attack the minimum coverage provision as a serious affront to liberty. The minimum coverage provision will require some Americans starting in 2014 to purchase a minimum amount of health care insurance.

    The affront to liberty, Weiner writes “is the right not to obtain insurance – by any other name, freedom to contract.”

    In the Supreme Court’s 1905 Lochner v New York opinion, the majority held that the freedom to contract was “part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution.” Weiner notes that Lochner thus barred New York from regulating conditions of some workers. And in its 1923 Adkins v. Children’s Hospital opinion, the Court relied on this so-called freedom to contract to protect employers from adhering to the minimum wage law.