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Health Care and the High Court
The National Law Journal
06-28-2012
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.
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.
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 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.
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.
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.
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.
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.
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.
