Health Care and the High Court

The National Law Journal

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The U.S. Supreme Court has upheld the centerpiece of the nation's new health care law — the individual mandate to buy insurance — as a constitutional exercise of Congress' taxing authority. Led by veteran reporters Tony Mauro and Marcia Coyle, The National Law Journal wraps up its coverage of the week's historic events with analysis of what the landmark decision will mean not only for the Court but for health care practitioners as well. Plus, a collection of memorable moments from the term and commentaries from top lawyers on both sides of the health care debate.

 

Tough medicine
The health care decision may have been controversial, but it could push the Supreme Court out of the political spotlight.


CHARTS
• Verbatim: the justices get political
To an unusual degree this term, the justices made comments in decisions and oral arguments that were politically charged or at least related to outside political events.
• The term's top cases
Health care stole the spotlight, but the Court's latest term was bursting with big cases.

Scalia demeanor on bench comes under scrutiny
Advocates and commentators usually shrug off Scalia's sometimes barbed comments from the bench, as well as his stinging dissents. During this term, partly because of the politically fraught cases the justices faced, Scalia's behavior has come in for less forgiving scrutiny.

Supreme Court upholds health care law
In a stunning victory for the Obama Administration, the U.S. Supreme Court on Thursday upheld the centerpiece of the nation's new healthcare law — the so-called individual mandate to buy insurance — as a constitutional exercise of Congress' taxing authority.

Roberts shuffles the deck with health care decision
In leading the majority ruling on the landmark Affordable Care Act cases, Chief Justice Roberts managed to stay true to his conservative roots while still, at the end of the day, crafting a majority that upheld the law that conservatives so roundly hate.
Who wins? Health care lawyers, that's who
Lawyers say they expect an uptick in demand for their services as clients assess the impact of the health care law.

How they fared
Six oral advocates in the health care case.
 

In health care and immigration cases, vindication for Verrilli
The health care ruling, paired with Monday's victory for the Obama administration in the Arizona v. United States immigration case, has vindicated Solicitor General Donald Verrilli's role as oral advocate.

Instant commentaries from the front seat
A collection of snap reactions to the decision from Elizabeth Price Foley, Robert Weiner, Randy Barnett, Erwin Chemerinsky, Robert Muise, Asheesh Agarwal, and others.

 Feedback: Twitter response to the health care decision 
From Rick Santorum and Donald Trump to Michael Moore and Chris Hayes, the Twittersphere was abuzz with 140-character reactions.

NATIONAL FEDERATION OF INDEPENDENT BUSINESS ET AL. v. SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL

Continue reading for more coverage on the high court's historic health care decision.

LATEST COVERAGE (updated 6/27)

 

Saving the 'best' for last: Landmark final days at the Roberts Court
Thursday morning is taking on Armageddon dimensions as the nation awaits the U.S. Supreme Court's healthcare ruling. But the final days of Supreme Court terms nearly always promise drama as well as a fair amount of sorrow and jubilation, depending on your viewpoint.

 

Health care decisions on Thursday? A sure thing. Well, probably.
The mystery that has gripped the nation's capital is over: The Supreme Court almost certainly will release its landmark decisions on the health care reform law on Thursday.

Senators urge Supreme Court to allow live broadcast of health care decisions
The top lawmakers on the Senate Judiciary Committee have joined the chorus of organizations requesting that the Supreme Court allow live broadcast coverage of the upcoming announcement of its historic health care decisions.

Media groups ask Supreme Court to allow live broadcast coverage of health care ruling
A coalition of news organizations is asking the Supreme Court to permit live broadcast coverage of the upcoming announcement of its historic health care decisions.

Commentary: The other argument on the other health care mandate
The case may then turn not so much on the commerce clause, as almost everyone seems to expect, but on whether the spending clause is violated by the Medicaid mandate. The media so far have largely ignored this important aspect of the states' two constitutional challenges.

Commentary: An unprecedented discussion of the health care law
A retired law professor and a retired judge hold court over the Affordable Care Act by a bench in Agora Park.

Have you heard the latest on federalism?
Two professors came up with a theory under which the Affordable Care Act makes perfect sense.

Commentary: Precedent for contraception coverage
Many of the organizations challenging HHS rules failed in suits against similar state rules.

Commentary: An alarming health care future
Questions raised by some justices during oral arguments in the cases ­challenging the Affordable Care Act suggest a ­troubling outcome for women.

Paul Clement's second-chair
Erin Murphy is the only other lawyer on all his briefs in health care cases.

Advocate in health care cases predicts his own defeat
One of the lawyers who argued before the Supreme Court in the landmark health care cases last week is fairly sure that not a single justice will adopt the position he espoused. And he is okay with that. No, it wasn't either of the lead lawyers Paul Clement or Donald Verrilli Jr. making this assessment. Click here to reveal the attorney.

THE THIRD DAY

As health care arguments close, fate of law seems uncertain
As three historic days of oral argument at the Supreme Court came to a close Wednesday, the fate of the landmark Affordable Care Act seemed as uncertain as ever — if not more so — amid sharp divisions among the justices.

VIDEO: Marcia Coyle on the last day of ACA arguments

video platform videomanagement


First Take on Second Argument of the Day: Justices Question Whether Medicaid Expansion Coerces States
The Supreme Court's liberal wing came alive Wednesday afternoon, aggressively questioning former solicitor general Paul Clement on his claim that the Medicaid expansion contained in the Affordable Care Act is an unconstitutional intrusion on state power.

First Take on First Argument of the Day: Justices Consider Impact of Striking Down Individual Mandate
On the third and final day of arguments over the landmark health care law, the choice, as Justice Ruth Bader Ginsburg put it, was between a "wrecking operation and a salvage job" – in other words, scrapping the entire law, or finding portions of it that can survive even without the requirement that most Americans buy a minimum level of insurance coverage. Justices found major problems with both alternatives, making it difficult to predict how they would rule.

Commentary: The Roberts-Kagan compromise on Obamacare?
The oral arguments on the health insurance mandate did not go especially well for the government, in part because it mistakenly chose to accept the opponents’ erroneous framing that it would be unprecedented for Congress to require individuals to purchase something. But even though it needlessly gave itself an uphill burden by accepting this mistaken framing, the comments of Chief Justice John Roberts Jr. and Justice Elena Kagan suggested a compromise that might still save the health insurance mandate.

Instant commentaries from the front seat
A collection of snap reactions to the day's events from James Napoli, Christopher Wright, Ilya Shapiro, and Elizabeth Wydra.

Transcript: National Federation of Independent Business v. Sebelius.  (For audio, click here.)

PHOTOS: OUTSIDE THE COURT

Outside the Supreme Court, March 28, 2012. Photo: Diego Radzi... on TwitpicOutside the Supreme Court, March 28, 2012. Photo: Diego Radzi... on TwitpicOutside the Supreme Court on the last day of ACA arguments, M... on TwitpicOutside the Supreme Court on the last day of ACA arguments, M... on Twitpic

All photos by Diego M. Radzinschi for National Law Journal.


THE SECOND DAY

Tough questions for administration over health care mandate
The Obama Administration's top lawyer faced aggressive and often skeptical questioning on Tuesday by U.S. Supreme Court justices in a sweeping and historic argument over the constitutionality of the nation's new healthcare law.

For the lawyers, a contrast in styles during Tuesday's arguments
Commentators assert that the contrasting styles of the lawyers who argued Tuesday should not obscure the fact that Solicitor General Donald Verrilli Jr. had made all the points he had intended to make in defense of the law as a constitutional approach to solving a national economic problem.

VIDEO: Marcia Coyle discusses Day Two on PBS News Hour

MORE VIDEO COVERAGE BELOW

Transcript: Department of Health and Human Servs. v. Florida. (For audio, click here.)

PHOTOS: OUTSIDE THE COURT

Tuesday outside the Supreme Court. Photo by Diego Radzinschi ... on TwitpicThe scene outside the Court this morning. Photo by Diego Radz... on TwitpicMore from outside the Supreme Court this morning. Photo by Di... on TwitpicA protester outside the Supreme Court, Tuesday, March 27, 201... on Twitpic

All photos by Diego M. Radzinschi for National Law Journal.


THE FIRST DAY


AUDIO OF TODAY'S ARGUMENTS BELOW

Transcript: Department of Health and Human Servs. v. Florida

Marcia Coyle on The News Hour
Watch this report from The News Hour on PBS, featuring The National Law Journal's Marcia Coyle discussing Monday's events at the U.S. Supreme Court.

 

On health care's first day, jurisdiction argument fails to stop the show
The U.S. Supreme Court on Monday showed clear signs that it is ready to tackle the contentious issue of the constitutionality of the Affordable Care Act sooner rather than later.

A long argument, but nowhere near the record
At six hours over three days, the duration of the arguments over the Affordable Care Act will be historic – but not unprecedented, even in the modern era.
 
Health care reform arguments offer real-world lessons for law students
Most constitutional law professors will admit that the Commerce Clause – which gives Congress the power to regulate interstate commerce – isn't exactly the sexiest part of their syllabus. That dry subject matter has been spiced up this year.
 

PREVIEWING THE ARGUMENTS

The first health care argument: A question of jurisdiction
Soaring arguments about the individual mandate and the Constitution's commerce clause will wait for another day. In the first high court face-off over the law, the justices will be preoccupied with a decidedly less glamorous — but crucially important — issue: namely, whether the challenges can proceed at all in light of a once obscure federal statute that bars suits against federal taxes before they are collected.

It all comes down to the individual mandate
In the minds of supporters and opponents of the Patient Protection and Affordable Care Act, the issue before the Supreme Court that truly counts is the law's minimum-coverage requirement — in other words, the individual mandate. For two hours on March 27, the justices will hear arguments on whether Congress exceeded its lawmaking powers under Article I of the Constitution by requiring qualified individuals to purchase health insurance or pay a penalty if they do not.

One law, indivisible — or is it?
If a 90-minute argument over a statute's severability seems like a prescription for insomnia, some Virginia coal miners stand ready to dispel that misperception. They and their spouses have a critical stake in how the U.S. Supreme Court answers a key question in the legal battle over the Patient Protection and Affordable Care Act (ACA): If the new law's mandate that eligible persons have minimum health insurance is unconstitutional, is the mandate severable or must the entire act fall?

Challengers: Medicaid expansion is coercive
Late on the morning of March 28, in the final segment of the Court's three-day examination of the Affordable Care Act, the justices will consider what many call the "sleeper" issue of the entire litigation: whether the statute, with its promise of large subsidies for the states, unduly coerces them into accepting a massive expansion of Medicaid coverage tailored to fit new federal requirements.

THE LAWYERS

Appointed to argue a 'once-in-lifetime' high court case
Robert Long, the chair of the Supreme Court and appellate litigation practice at Covington & Burling, was picked by the Court last November to make the case that the challenge to the massive health care act is premature and should be barred altogether because of the Anti-Injunction Act, which prohibits suits against a tax before it is collected. He calmly acknowledges that he will be part of a "once-in-a-­lifetime case" because of the magnitude of the issues. But Long is approaching it like any other argument.

For a Jones Day partner, yet another hot-button case
The lawyers challenging the Afford­able Care Act have tapped Greg Katsas as the person who would try to convince the Court that it has jurisdiction over the litigation in spite of the Anti-Injunction Act. Friends say he has no reason to break a sweat over arguing in the historic cases, given his broad range of experience litigating marquee civil cases at the appellate level for the Bush administration.

On deck to argue against mandate: Jones Day's Michael Carvin
"At the end of the day, it is a complicated constitutional question which involves an issue I've always been interested in — limitations on Congress' ability to interfere with citizens' lives," he said. "The plain language of the Constitution obviously puts limits on Congress that they have quite obviously violated in the health care law."

Amicus briefs abound in health law cases
The health care challenges in the U.S. Supreme Court have drawn 132 amicus briefs in the three cases granted review. There are dueling economists and congressional leaders, a raft of religious and anti-abortion groups, conservative and liberal public interest law firms, doctors, nurses, and even a solo lawyer with a new constitutional theory.

Arguing for the government: Ed Kneedler
To share the government's defense of the nation's new health care law in the U.S. Supreme Court, Solicitor General Donald Verrilli Jr. turned to a lawyer with unmatched high court experience in his office, an apolitical reputation and enormous credibility with the justices as well. Edwin Kneedler, the senior career deputy solicitor general, will make the government's argument on severability on March 28.

Health Care Advocates: H. Bartow Farr III
He may have one of the lowest profiles and highest reputations among the Supreme Court bar today. As a rule, he does not talk about his cases with the media before arguments. And in the media crush surrounding arguments over the healthcare challenge, Farr seems even more determined to keep a low profile, in contrast to the frequent public discussions in which his counterparts have engaged.

Clement and Verrilli to square off, again
This historic week of Supreme Court arguments won't be the first time that two of the main antagonists, Donald Verrilli Jr. and Paul Clement, have gone head to head before the justices over health care. It happened once before, in Novem­ber 2003.

COMMENTARY

Practitioners sound off, pro and con, on the four key issues before the Supreme Court.

 

THE DOCKET

Click here for all the filings and other documents relating to the Patient Protection and Affordable Care Act cases.

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Tony Mauro

David Brown

National Law Journal

Legal Times


VIDEO

Marcia Coyle's immediate analysis on the developments during Day Two.

Marcia Coyle, The National Law Journal’s chief Washington correspondent, was inside the courtroom for Monday’s arguments in Department of Health and Human Services v. Florida, the first case in three days of arguments over the Affordable Care Act. Coyle analyzes the case and the justices' reactions to arguments just after leaving the high court Monday afternoon.

Tony Mauro appeared with Dahlia Lithwick on C-SPAN's Washington Journal this morning. The interview begins about 2:15 in.


AUDIO OF ARGUMENTS

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What's being said

  • phyllberg

    In my opinion, the concept (affordable healthcare) is a right, not a "reform" as proposed by one individual. DOC BARACK seems to be chock full of echoes of empty rhetoric, in general, with no plans for implementation. Re, the issue of affordable health care, it seems that each state of the union must fend for itself. Will the federal government allocate provisions per captia for such a venture?

  • A Philadelphia Lawyer's Thoughts

    This Historic decision will be studied in U.S. Law Schools forevermore. The Court only decided that the Congress had the power to pass the law persuant to its power to levy taxes. There will be a plethora of cases relative to the Constitutionality of the law's various Mandates as, for example, when a Mandate conflicts with a Religous Institution's Freedom of Conscience guaranteed by the 1st Amendment's protection of Freedom Of Religion. To borrow from an old addage from Vaudeville, "It ain't over till the fat lady sings!".

  • A Philadelphia Lawyer's Thoughts

    This Historic decision will be studied in U.S. Law Schools forevermore. The Court only decided that the Congress had the power to pass the law persuant to its power to levy taxes. There will be a plethora of cases relative to the Constitutionality of the law's various Mandates as, for example, when a Mandate conflicts with a Religous Institution's Freedom of Conscience guaranteed by the 1st Amendment's protection of Freedom Of Religion. To borrow from an old addage from Vaudeville, "It ain't over till the fat lady sings!".

  • gregreedan

    I would suggest that if the mandate is coercive, so what. The governments of many states have coercive fees. How about communities which will not allow their fire departments to put out your house fire, unless you've paid your fee. That is even a greater evil, than that imagined by the mandate for health. How about in time of war, when only able bodied people are told to go to basic training or boot camp and go somewhere to be put in harms way? For them, in many cases the mandate is to risk their physical health and well being. I do not see anyone arguing against the legality of the draft during wartime. We are a sick nation, and we have to have a "War against disease" which plagues us, because we have a failing health system. The Health Care payment mandate is a necessary step in this war.

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