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Health Care and the High Court
The National Law Journal
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.
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.
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.
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.
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.
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.
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.