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News & Press: Policy News

Health Law Heads to Court

Sunday, March 25, 2012  
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In 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.

"This 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."

More 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.

Opponents—led 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 purchase insurance.

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 other justice.

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.

In 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 upheld.

Two experienced conservative appellate judges, Lawrence Silberman and Jeffrey Sutton, cited those recent precedents in upholding the Obama health law.

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 options.

"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 say.


By: Jess Bravin, Wall Street Journal

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