Private Challengers of Health Care Law: Congress is ‘Corrupt,’ Law is ‘Unprecedented’

March 26, 2012

by Jeremy Leaming

Regardless of the loads of attention that the Supreme Court oral arguments will continue to draw the remainder of the week, the tone of the justices’ questions and their reaction to answers are unlikely to reveal much about how the challenges to the law will be resolved.

Talking with ACSblog, constitutional law professor, Garrett Epps said there is no way to predict the outcome because “in a case of this magnitude, the Court reacts to the emotional and political overtones of the issue. And certainly the state challengers and the private challengers have done their best to raise the emotional tone of these arguments.”

The high court commenced three days of oral argument this morning in the challenges to the Obama administration’s landmark health care reform law, the Patient Protection and Affordable Care Act, or Affordable Care Act (ACA), or Obamacare. Today’s oral argument centered on whether an 1867 law, the Anti-Injunction Act, permits the law to be challenged at this time – a standing issue. Before chatting with ACSblog about the oral arguments, Epps noted that Slate senior editor Dahila Lithwick had recently tweeted, that if the health care law oral arguments “were the Beatles, the Tax Anti Injunction Act would be Ringo.”

Epps, also legal affairs editor for The American Prospect, stuck to what many experts on the law say is its integral part, the minimum coverage provision. That provision requires many, starting in 2014, to purchase a minimum amount of health care coverage or pay a penalty on their income tax filings. The opponents of the ACA have argued the provision is an “unprecedented” governmental regulation.

Indeed, as Epps noted, the state and individual challengers of the law have spent lots of time and energy trying to paint the law as a wild overreach by the federal government.

“In the state brief on minimum coverage, I finally decided we should have a drinking game, because I began counting each time the word ‘unprecedented’ was used in their brief; and the total was 19 times in about 80 pages. The idea being that there is danger here – something terribly dangerous is going on.”

The private party briefs go even further in alleging that the minimum coverage provision is unconstitutional Epps continued. “They basically try to say the Congress is inherently corrupt, that this process cannot be allowed to stand because Congress basically designed it to be politically palatable to the country, and they go on to predict that we will be … forced to eat broccoli, and we’d be force to buy American cars; that we are going to be forced to live in a kind of big brother dystopia if this minimum coverage provision is allowed to stand.”

Epps said one of the more interesting questions to be answered is whether the conservative wing of the high court would embrace the economic libertarianism that the private challengers advance in their briefs. He said if the high court were to embrace that argument, then the country could be in for era far more troubling than the pre-Lochner time, when the Supreme Court routinely invalidated congressional regulation.

See the entire interview with Epps below, and read more about the health care oral arguments in the ACSblog online symposium.