Obamacare 'Biggest Test' of Presidential, Congressional Power Since New Deal

Sunday, 25 Mar 2012 10:11 AM

 

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The U.S. Supreme Court review of President Barack Obama’s healthcare law carries an unprecedented combination of economic, political, and legal stakes.

The court, which convenes three days of arguments beginning on Monday, will determine the fate of a measure that would extend insurance to about 32 million people and revamp an industry that accounts for 18 percent of the U.S. economy.

Its ruling, probably in late June, will shape the legacies of Obama, the driving force behind the 2010 law, and Chief Justice John Roberts, the Republican appointee whose views remain a mystery. The case may become a legal landmark, determining how much authoity the Constitution gives Congress.

“The healthcare case is the biggest test of the president and Congress’ power since the New Deal,” when the court rejected some of President Franklin D. Roosevelt’s programs, said Susan Low Bloch, a constitutional law professor at Georgetown University Law Center in Washington.

Following are answers to questions and answers about how the case will unfold:

What will happen during the six hours of arguments?

Public debate has focused on the Affordable Care Act’s requirement that Americans either get insurance or pay a penalty. That’s only one of four issues before the court.

The first day’s arguments will center on a question that could scuttle the whole case. Under the 1867 Anti-Injunction Act, judges can’t rule on challenges to federal taxes until the levies are assessed. A ruling that says the act applies would force postponement of the clash until after the first penalties are imposed in 2015.

The following day, the justices turn to the main issue: the insurance requirement. The Obama administration says Congress could enact that provision under either its constitutional power to regulate interstate commerce or its authority to impose taxes.

On the third day, the court first will hear arguments on what happens to the rest of the law if the insurance requirement is found unconstitutional. Later, the court will take up whether the law, by expanding the Medicaid program, unconstitutionally coerces the states into spending more on health care for the poor.

Is it unusual for the Supreme Court to hear such a long argument?

Hours-long arguments were once the norm. The court considered the Brown v. Board of Education school desegregation case in two separate argument sessions — one in 1952 and one in 1953 — for a total of 15 hours. In the Miranda case, which resulted in a mandate that police tell criminal suspects their rights upon arrest, arguments lasted almost 6 hours in 1966. In 1970, the court opted for shorter sessions and cut the standard time allotment from two hours to one, with each side getting a half hour.

The last time the court heard more than two hours on a single case was 2003, when the justices set aside four hours to consider the McCain-Feingold campaign finance law.

Who is opposing the law?

Two groups are challenging parts of the law: 26 Republican-controlled states, plus the National Federation of Independent Business, a Nashville, Tenn.-based advocacy group for small business, and four of its members.

Big companies are staying out of the fray. Insurers, hospitals, drugmakers and large employers for the most part are on the sidelines. The U.S. Chamber of Commerce and the insurance industry aren’t taking a position on the insurance requirement, arguing only that, should it be invalidated, other parts of the law should fall as well.

Which lawyers will argue?

Seven lawyers will appear over the three days. U.S. Solicitor General Donald Verrilli and one of his deputies, Edwin Kneedler, will represent the government. For the 26 states, former Solicitor General Paul Clement of Bancroft PLLC will make the case. Gregory Katsas and Michael Carvin of Jones Day will argue for the National Federation of Independent Business and its members.

In addition, the court has appointed two veteran appellate lawyers to make arguments that none of the litigants are endorsing. It’s an unusual step, one the court takes about once a year to get an additional perspective on an issue.

Robert Long of Covington & Burling LLP will argue that the Anti-Injunction Act makes the case premature — a view that both the administration and the challengers reject, though adopted by one federal appeals court. Another lawyer, H. Bartow Farr III of Farr & Taranto, will argue that the justices should leave the rest of the law intact even if they invalidate the insurance requirement.

Who can attend?

Seating will be at a premium. The courtroom has space for about 500 people, and most of those seats will be filled by court employees, media and participants in the case. There will be space reserved for probably 75 lawyers admitted to practice before the Supreme Court.

For the general public, the court typically sets aside 50 seats — and lines have been known to start days in advance. The court also has a second line that gets visitors into the room for a 3-to-5-minute snippet of the argument. When the court heard the Bush v. Gore case in 2000, which resolved a deadlock over vote counting in the presidential election in Florida, everyone in that line got into the courtroom.

As for the press, the unofficial record comes from the Bush v. Gore case, when the court packed 121 people into the media section, including a hallway where reporters can hear the justices without seeing them. Another 22 reporters sat in an overflow room where the sound was piped in.

Will there be camera coverage? How about audio?

The court rejected media and lawmaker requests for television coverage. The justices have never allowed video coverage of their arguments. Over the years, the justices have said that cameras would strip them of their anonymity and change the dynamic in the courtroom. They have also said news organizations would use snippets of arguments taken out of context.

The court will post the audio on its website each afternoon of the three-day argument — a change from the normal practice of releasing audio on a weekly basis.

How much will we learn from the arguments?

Potentially a lot. Supreme Court arguments can be rapid fire, usually with everyone except Justice Clarence Thomas posing questions, often leaving clues about justices’ thinking. By the end of the arguments, justices’ concerns probably will be evident, even if it’s unclear how they will vote.

Which justices may be swing votes?

Four of the nine justices may be in play on the issue of the insurance requirement, and the challengers will probably need all four of them to win. Justices Anthony Kennedy and Antonin Scalia both were in the majority when the court limited Congress’ commerce clause power in decisions in 1995 and 2000. They switched sides to join a 2005 ruling that allowed federal prosecutions of people who use medicinal marijuana that never crosses state lines.

Two other Republican appointees, Roberts and Justice Samuel Alito, have never ruled in a commerce clause case. Roberts supported broad federal power when he joined the majority opinion in a 2010 decision upholding the civil commitment of sexually dangerous people whose federal prison terms have expired.

What are the most important constitutional issues?

The fate of the insurance requirement will turn on the court’s interpretation of three parts of the Constitution. The first is the commerce clause, which says Congress may “regulate commerce with foreign nations and among the several states.” The court has relied on the commerce clause to uphold laws including the 1964 Civil Rights Act.

The court previously has extended the reach of the commerce power through the necessary-and-proper clause. That provision says Congress may “make all laws which shall be necessary and proper for carrying into execution” its enumerated powers.

Congress also has power under the Constitution to “lay and collect taxes, duties, imposts and excises.” The Obama administration says the tax clause provides a second, independent constitutional basis for the law.

The Medicaid issue centers on the Constitution’s spending clause, which authorizes Congress “to pay the debts and provide for the common defence and general welfare of the United States.” The Supreme Court has said that provision lets Congress put conditions on federal funds. The states say they are being unlawfully coerced.

What are the most important legal precedents?

The Obama administration points to both old and recent precedents in support of its contention that the insurance requirement is within Congress’ power to regulate interstate commerce.

The government relies on Wickard v. Filburn, a unanimous 1942 ruling that said a federal quota on wheat production could constitutionally apply even to wheat used on a family farm for consumption on the premises. The U.S. also cites Gonzales v. Raich, a 6-3 ruling in 2005 that let the federal government prosecute people for locally grown medical marijuana.

The government says those two cases show that Congress can regulate local activities, even non-economic ones, when that’s necessary to make a broader regulatory system effective. In the 2005 case, the majority said an exemption for local marijuana would leave a “gaping hole” in federal drug laws.

The 26 states and the independent business federation cite two other rulings that they say show the high court will and should step in when Congress goes beyond the powers listed in the Constitution.

In 1995, the court voted 5-4 to strike down a federal law barring possession of guns near school buildings as being beyond Congress’ power under the commerce clause. The majority pointed to “a distinction between what is truly national and what is truly local.”

Similarly, the court in 2000 struck down a provision in U.S. law letting victims of gender-based violence sue in federal court, rejecting government contentions that the measure had a sufficient connection to interstate commerce.

What did the lower courts say?

They were divided. Of the four federal appeals courts to rule, two upheld the law, one declared the mandate unconstitutional and the fourth said the Anti-Injunction Act made a court review premature.

Has there ever been a similar case so close to an election?

The closest parallel comes from 1935 and 1936, when a series of high court rulings voided parts of Roosevelt’s New Deal, economic programs designed to respond to the Great Depression.

When will the court rule?

Mark your calendar for the last week of June. The court typically wraps up its nine-month term at the end of June, and chances are the health-care ruling will be one of the last delivered. While the ruling might come sooner, the justices tend to work on their opinions in the biggest cases until the last possible minute.

© Copyright 2014 Bloomberg News. All rights reserved.

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