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3 Epic Days: Health Care Law Reaches High Court

Richard Wolf|USA Today
Monday, 26 Mar 2012 | 11:41 AM ET
Jill Fromer | Photodisc | Getty Images

Washington – Health coverage for more than 30 million people. The power of Congress to regulate interstate commerce. President Obama's re-election. The reputation of the Supreme Court and the legacy of its chief justice.

And to hear some tell it: liberty.

All that and more could be at stake today when the Supreme Court begins three days of historic oral arguments on a 2010 health care law that has become a symbol of the nation's deep political divide.

Not since the court confirmed George W. Bush's election in December 2000 — before 9/11, Afghanistan and Iraq, Wall Street's dive and Obama's rise — has one case carried such sweeping implications for nearly every American.

"There's never been anything this big that the federal government has required … to which the states were not given an opt-out," says former Florida attorney general Bill McCollum, a Republican who filed the first lawsuit against the Patient Protection and Affordable Care Act on March 23, 2010, the day it became law. "It's the totality of this, the enormity of it."

"You've got just unbelievable repercussions here. The stakes couldn't be any higher," says Tom Daschle, the former Senate Democratic leader who helped lead the previous effort to change the health care system in 1993-94. "For anybody who cares about health care, this is the whole ballgame."

Passed by Democrats along strictly partisan lines and still two years short of full implementation, the law is designed to extend health coverage to more than 30 million uninsured people, ban insurers from discriminating against those with expensive ailments, and require nearly all Americans to buy insurance or pay penalties.

It turns out that's not all. The overhaul of a health care system that spends more than all other industrialized nations but still has 50 million uninsured has taken on even more significance as it reaches the high court:

Millions of Americans stand to feel the direct reach of the court, as the entire health care system and the costs associated with it could be affected by its decision. Already, millions have used the law's early benefits, such as free wellness exams for seniors and a provision that allows children up to age 26 to be covered on their parents' policies.

Yet two years in, implementation of the law has been uneven. The Commonwealth Fund, a research foundation that highlights the health care needs of the poor, found that 49 states had taken at least some steps toward implementing insurance market changes, including 23 that had passed new laws or regulations; only Arizona remained on the sidelines. Many states are proceeding too slowly to meet timetables if the law is upheld — but could reverse field if the law is overturned.

Americans remain divided on whether the law was a good or bad idea. Even so, only one in four expect it to improve their situation, and nearly three in four believe the insurance mandate is unconstitutional, a USA TODAY/Gallup Poll last month showed. Many Americans also are confused about the law's standing: A poll this month by the non-partisan Kaiser Family Foundation found 42% were either unsure of the law's status or believed the Supreme Court had already overturned it.

"The public's been dug in since the beginning," says Mollyann Brodie, Kaiser's director of public opinion and survey research. "It's really become more of a symbolic issue, and a touchstone issue, about the role of government."

• This year's presidential election and the agenda of the next Congress will be affected by the justices' ruling, expected in late June. Though the health care issue is a drag on Obama's re-election chances now, a win in court could sway independent voters, says Chris Jennings, former health policy adviser to President Clinton.

However, conservatives are twice as likely to be angry if the ruling goes against them, perhaps portending an extra push to defeat Democrats at the polls, according to the Kaiser survey. Their anger is reflective of the 3-to-1 ratio of negative-to-positive TV ads about the law over the past two years, according to Kantar Media's Campaign Media Analysis Group.

That effort likely would spill over into the 2013 congressional session, marked by targeted efforts to repeal parts or all of the law. Those efforts are underway already: The House voted 223-181 last week to abolish the Independent Payment Advisory Board, which was created under the law to keep Medicare costs from soaring. The bill is certain to die in the Senate.

• The Supreme Court's reputation and future precedents will be shaped by the outcome. Frequently divided 5-4 and facing a docket that includes immigration, affirmative action, gay marriage and voting rights, the court and Chief Justice John Roberts will themselves be judged by their decision. And a ruling to uphold the mandate, or to overturn the expansion of Medicaid, could have sweeping repercussions on future mandates or federal aid to states.

Before one word has been spoken in court, the case has been likened to its review of the income tax system in 1895, the Social Security Act in 1937 and the Civil Rights and Voting Rights Acts in 1964-65.

"It's an incredible case study about the role of the court," says Bradley Joondeph, a law professor at Santa Clara University who has monitored the health care lawsuits. "When do the justices feel it's their role to step in and essentially overrule the judgment of the political process?"

President Obama greets Supreme Court Justices Anthony Scalia and Ruth Bader Ginsburg before delivering his State of the Union address on Jan. 24.

The principal players before the court will be the federal government, a coalition of 26 states, and the National Federation of Independent Business, plus two lawyers appointed by the court to argue key points. Beyond them, more than 130 amicus briefs — a modern record, surpassing two affirmative action cases in 2003 — have been filed by organizations ranging from the seniors organization AARP to the Young Invincibles, a group of young adults.

Former attorney general Edwin Meese, chairman of the Center for Legal and Judicial Studies at the conservative Heritage Foundation, compares the case to the Brown v. Board of Education desegregation case of 1954. "The fact that they have allotted a full six hours of argument is indicative of how important the court itself deems it to be," Meese says.

Day One: Decide its fate, or wait?

The court's review of Obama's signature policy achievement follows more than two dozen federal district court lawsuits and seven at the appeals court level. Two district courts and one appeals court struck down the law; another appeals court ruled that it's too soon to try the case.

At 10 a.m. ET Monday, the court will hear 90 minutes of arguments on whether that three-judge panel of the 4th Circuit Court of Appeals was correct, and the whole case must be put on hold. Ironically, it's a position neither side takes.

At issue is the Anti-Injunction Act of 1867, which bars challenges to tax laws before they are enforced. Because the requirement to buy health insurance is backed by an IRS penalty, the justices must decide if challenges to the law are premature. Should that be the ruling, all bets are off until at least 2014, when the mandate takes effect — and most likely 2015, when the first penalties would be payable.

In his brief arguing for delay, Washington attorney Robert Long says Congress "provided that the penalty should be assessed and collected in the same manner as taxes," and that the Anti-Injunction Act defines taxes as "assessable penalties."

Paul Clement, a former solicitor general under President George W. Bush who will argue before the nine justices as the states' lawyer, counters that the mandate, not the penalty, is being challenged. Solicitor General Donald Verrilli says the penalty "is not within the category of tax penalties that trigger" the Anti-Injunction Act.

Day Two: The main event

The most anticipated arguments will come Tuesday, when the court devotes two hours of debate to the "individual mandate" — a phrase that never appears in the 2,409-page statute.

The government's case is simple: Congress has clear authority to regulate interstate commerce. The mandate does just that by regulating the financing of health care, which represents 18% of the nation's economy. It is "necessary and proper" in order to carry out the changes in the insurance market, such as guaranteeing coverage to people with pre-existing conditions. And it's authorized by Congress' taxing power.

The law's proponents see a slam-dunk. "There's no question the federal government can do this," says Washington lawyer Joe Onek, a veteran of the Carter and Clinton administrations. "In the end, it may turn out to be an anticlimax."

Opponents say the government has never required Americans to enter into commerce and warn that such a mandate could lead to more in the future. Their pitch: If this is allowed, what couldn't the government do? "It's contrary to the notion that the federal government is a government of limited powers," says Paul Orfanedes, director of litigation for Judicial Watch, which has filed a brief in opposition.

The justices will hear only from the Justice Department, the states and the National Federation of Independent Business, but this part of the lawsuit has produced the most "friend of the court" briefs: 46 opposing the mandate and 32 supporting it.

Day Three: A double-header

Wednesday morning, the justices will hear arguments on whether the individual mandate can be thrown out and the rest of the law upheld. Neither side wants that to happen.

Although the mandate is the law's most unpopular element, even proponents say if it goes, it should take at least some of the most popular provisions with it. That would include guaranteed coverage for people with pre-existing conditions and limits on premiums for those with expensive ailments — changes that the government says could not be paid for unless millions more people buy insurance.

The states and business group challenging the law argue that the mandate isn't "severable" at all — if it's struck down, the entire law should fall. The law "was a unique package deal," argues Michael Carvin, the lawyer representing small businesses. His brief says the law "cannot survive and never would have been enacted without its unconstitutional heart."

The final act will be played out Wednesday afternoon, when the court considers the law's expansion of Medicaid to cover about 16 million more adults.

The 26 states argue that the expansion and initial 100% federal funding is "coercive" by luring states into an offer they can't refuse. They say it also will pull others into Medicaid who already qualify but have not enrolled, and it will require certain treatments, all at a cost states cannot afford. "This is going to wreck our budgets," McCollum says.

Proponents see it as a key step toward universal coverage. If the court strikes down the Medicaid expansion, they say, programs ranging from child welfare to prisons could be jeopardized, as well.

In court, watching for the slightest clues

So crucial is the case that the two sides have taken up arguments usually identified with their opponents.

Liberals note that conservative opponents of the law — generally disposed toward judicial restraint — want nine unelected judges to overrule the work of the elected members of Congress.

"The unelected Supreme Court shouldn't be taking democratic decisions away from the people," chides Neal Katyal, who as acting solicitor general until last June defended the law in the lower courts.

This decision is going to come by the Fourth of July, and that's going to be just before the (national) political conventions. What's it going to mean if the Supreme Court says it was all unconstitutional and a waste of time?"Robert Laszewskiindependent health care consultant

Conservatives note that the administration denied during debate on the law that its threatened penalty was a tax. Now, however, its lawyers are eagerly calling it just that — and therefore constitutional under the taxing and spending clause. Whatever it's called, it rises to a maximum of $2,085 a family or 2.5 percent of household income by 2016.

"It's incredibly ironic" that backers call it a tax, says Douglas Holtz-Eakin, a former Congressional Budget Office director and aide to Republican Sen. John McCain's 2008 presidential campaign. He accuses them of "a cynical willingness to say anything to get what they want."

If it will be difficult sometimes to tell the proponents from the opponents without a scorecard, most court-watchers needn't worry. Tickets for the oral arguments are nearly impossible to get. Those left out will crowd the streets and steps outside the court, near where Tea Party and other protesters rallied over the weekend.

Those inside will be looking for any judicial flinch or wisecrack to determine each justice's inclination. "Everybody's going to be pouncing on every raised eyebrow … the ridiculous and the sublime," says Robert Laszewski, an independent health care consultant from Virginia.

Guessing what the court will decide has become a favorite pastime of constitutional scholars and legal amateurs alike. Much of the betting is that the court, despite its 5-4 conservative tilt, will uphold the law.

One reason: Opponents have a higher burden of proof. They must prove the law unconstitutional under the commerce, tax, and necessary and proper clauses of the Constitution. Backers just need one clause to save them.

Another: A majority of lower courts upheld the law, including two judges noted for their conservatism: Jeffrey Sutton of the 6th Circuit Court of Appeals in Cincinnati and Laurence Silberman of the U.S. Court of Appeals for the District of Columbia.

Sometime around June 29, the last day of the court's term, the speculation will end. But the political and policy battles over the Affordable Care Act will be far from over.

"This decision is going to come by the Fourth of July, and that's going to be just before the (national) political conventions," Laszewski says. "What's it going to mean if the Supreme Court says it was all unconstitutional and a waste of time?"

The law's defenders have an answer. "History will not judge them well, and I know that, because I'm going to write the history," says Akhil Reed Amar, a constitutional scholar at Yale Law School.

Even so, the potential for a slice-and-dice decision affecting parts of the law, or one that puts off the decision altogether, has many court-watchers unwilling to predict an outcome.

Says Kevin Marshall of the law firm Jones Day, which is representing the National Federation of Independent Business: "There's probably an infinite number of permutations for how this case could turn out."


This story first appeared in USA Today.

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