HHS v. Florida

  • April 27, 2012

    by Jeremy Leaming

    For what feels like decades, reporters, pundits, and ideologues, mostly on the right, but some on the left, have lauded Supreme Court Justice Antonin Scalia for his wit, pointed oral argument questioning and allegedly brilliant writing. But those plaudits, in light of the justice’s performances during oral argument in cases challenging health care reform and Arizona’s racial profiling law, are wobbly at best, bordering on delusional.

    In reality Scalia increasingly has difficulty, as The Washington Post’s Dana Milbank recently noted, containing his rabid partisanship. It’s unbecoming. During the Affordable Care Act oral argument it appeared, at times, that his only preparation involved reading right-wing blogs railing about the slippery slope to regulations mandating purchases of broccoli and gym memberships. At oral argument in Arizona v. U.S., regarding challenges to several portions of the state’s anti-immigrant law, Scalia “left no doubt from the start that he was a champion of the Arizona crackdown and that he would verbally lacerate anybody who felt otherwise,” Mibank wrote.

    Milbank continued, “Scalia’s tart tongue has been a fixture on the bench for years, but as the justices venture this year into highly political areas such as health-care reform and immigration, the divisive and pugilistic style of the senior associate justice is very much defining the public image of the Roberts Court.”

    And it’s not a flattering image. Not only does Scalia come off as a ringleader of right-wing hacks in robes, he increasingly comes off as clueless or heartless. During the health care oral argument, questions from Scalia and some of the other right-wing justices prompted a string of commentators to question whether the justices understood the health care insurance market.

  • April 10, 2012

    by Jeremy Leaming

    Tom Goldstein has argued more than 20 cases before the U.S. Supreme Court, and in a recent interview with “The Daily Show with Jon Stewart,” delved into one of the cases he has argued, where the high court’s conservative majority rejected a constitutional challenge to jailhouse strip-searches.

    About 4-and-half minutes into part one of the interviews, Jon Stewart asked Goldstein, publisher of SCOTUSblog, about the April 2 opinion upholding broad uses of strip-searches. Stewart said the 5-4 opinion in Florence v. Board of Chosen Freeholders seemed to advance an “incredibly extreme” measure of police power.

    In part two, Goldstein continued that the justices on the right are “really worried about jail security.” In telling the story of Albert Florence – he was arrested for minor fines he had already paid, and then strip searched at two different New Jersey jails – Goldstein said he found the circumstances a “little hardcore,” and that “I wish we would have won, but we didn’t.”

    Goldstein noted that the high court’s Florence decision does not mean that jails have to use strip-searches. But he added, “I think when the jails are allowed to do it, I think they’re pretty much going to do it.” He also lamented the fact that he was unable to persuade the justices that typically people “don’t drive around on the street hoping to get picked up so that they can smuggle something into the jail.”

  • 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.”