Health Law Heads to Court
Sunday, March 25, 2012
taking up President Barack Obama's health overhaul Monday, the Supreme Court
wades into an issue that not only could sway this fall's elections but also
could help define for generations what Congress is and isn't entitled to do.
The court this week hears three days of arguments on the law's
constitutionality, with a ruling expected in late June. The administration and
its allies say the court must uphold the law to ensure that Congress can tackle
national problems by employing comprehensive solutions. In jeopardy, critics
say, is the fundamental American conceit that the federal government should be
restricted in what it can require of citizens.
case will be a tremendous opportunity to reaffirm that Congress is a
legislature of limited powers," said Randy Barnett, a Georgetown
University law professor who is helping the challengers.
On the eve of the court arguments, the case was being cast in
political tones. White House senior adviser David Plouffe said on NBC's
"Meet the Press" Sunday he was confident the justices would uphold
the law, saying that Americans were already benefiting from elements of the
plan. But Sen. Lindsey Graham (R., S.C.) said the health law would be a top
issue for the eventual Republican nominee.
"From a political point of view, this is probably the
centerpiece of the debate in the fall—the proper role of government," he
said on CNN's "State of the Union."
than two dozen people were snaked along the sidewalk outside the Supreme Court
by Sunday afternoon to secure seats to Monday's arguments, which will focus on
whether the case can even be heard before 2014, when most of the law takes
effect. Tuesday's session will take up the central question of whether Congress
holds the constitutional power to require Americans to carry health insurance
or pay a penalty. This mandate, the government maintains, is the essential
innovation of the two-year-old Patient Protection and Affordable Care Act and
promotes near-universal coverage by including younger and healthier people who
might otherwise avoid paying premiums.
Solicitor General Donald Verrilli will frame this minimum-coverage
requirement as simply a financing mechanism for a product virtually all
Americans will consume. He will contend it falls squarely within congressional
authority to regulate interstate commerce.
Wednesday will see two sessions of arguments, including on how
much of the overhaul law should remain in effect should the individual mandate
be struck down. The final session will be Wednesday afternoon.
Harvard University law professor Laurence Tribe, who taught both
Chief Justice John Roberts and Mr. Obama and was an Obama Justice Department
official, said opponents are asking the court to erase the flexibility the
Constitution's framers gave Congress. If the court struck down Mr. Obama's law,
said Mr. Tribe, it would implicate "virtually every major piece of federal
legislation enacted over the past several decades, and many laws now in the
pipeline"—including proposals favored by conservatives.
by former George W. Bush Solicitor General Paul Clement, representing 26
Republican-led states—say the Constitution's clause allowing Congress to
regulate interstate commerce doesn't apply here. They say Congress is creating
the very "commerce" it wishes to regulate by compelling consumers to
Georgetown's Mr. Barnett said the court could strike down the
mandate using narrow language intended to avoid broader implications.
Challengers merely want the court to say that "Congress has never gone
here before, and it can't go here again," he said.
To date, the government has the most points on the scoreboard:
Three federal appeals courts have rejected challenges to the Affordable Care
Act, while one has struck down the individual mandate but upheld the rest of
the law. Moreover, the government enters the court with four likely votes lined
up, those of liberal Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia
Sotomayor and Elena Kagan, whose prior writings suggest they will view the
overhaul as within congressional discretion.
To win, the challengers must secure all five conservatives. Based
on his prior opinions, Justice Clarence Thomas seems virtually certain to vote
against the mandate. The records of the other four, however, are sufficiently
ambiguous as to make their votes more difficult to predict. Of the justices
considered persuadable, Justice Anthony Kennedy may be the biggest target, as
his opinions were cited in the two sides' briefs far more than those of any
The court also could punt. One federal appeals court, the Fourth
Circuit, in Richmond, Va., ruled that a challenge can only take place in 2014
or after, when those penalized under the law's insurance mandate actually have
to pay their penalties.
The line between federal and state authority has moved back and
forth over more than two centuries of American history. The Constitution itself
was drawn up to bolster federal authority after the Articles of Confederation,
the initial compact among the original 13 states, left the central government
too anemic for the new nation's needs.
the 19th century, the Supreme Court rejected state claims that Congress lacked
authority to establish a national bank, but it later struck down federal laws
limiting the expansion of slavery—a decision that precipitated the Civil War.
The postwar Reconstruction amendments then gave Congress new powers to protect
individuals from abusive state governments.
From the Gilded Age through the first years of the Great
Depression, the high court regularly reined in federal economic legislation,
striking down Washington's efforts to eradicate child labor, improve working
conditions and promote food safety. But over the past 75 years, the court almost
always has deferred to Congress when it asserts the commerce power, upholding
not only direct regulation of commercial transactions but also activities with
"substantial effects" on interstate commerce. Agricultural quotas,
environmental laws and the Civil Rights Act of 1964, barring discrimination in
hotels and restaurants that might serve interstate travelers, all have been
Two experienced conservative appellate judges, Lawrence Silberman
and Jeffrey Sutton, cited those recent precedents in upholding the Obama health
The challengers accept that the federal government can
legitimately seek to improve access to health care. They acknowledge that
states could individually adopt virtually identical plans—as Massachusetts
has—and that Congress could enact even more aggressive means of promoting
universal coverage, such as extending a Medicare-type single-payer system, to
all Americans. They say, however, that the particular way the Affordable Care
Act is structured violates an intricate constitutional framework intended to
constrain federal power by channeling it through a limited set of policy
"There is one thing that distinguishes many of the
alternative means from the mandate: accountability," the Republican-led
states, led by Florida, say in their brief. They describe the coverage mandate
as a way to avoid the political opposition that more direct health-care fixes
would stoke. "That there is not the political will to" adopt such
methods "does not give Congress license to resort to a shortcut for which
there was just barely the presence of political will, but the absence of
constitutional authority," the states say.
Other states, led by Maryland, disagree. In a friend-of-the-court
brief, 13 mostly Democratic-controlled states and territories argue the law
complements efforts to boost health access. "The federal commerce power
exists precisely to allow Congress to address problems—like those that plague
the nation's health-care system—that do not respect state boundaries," they
By: Jess Bravin, Wall Street Journal