Archive for March 20th, 2012
Health Care Reform: Why It’s Safe From The Supreme Court
The Supreme Court will not overturn health care reform. At least if the five-justice conservative majority that brought the country Citizens United and Bush v. Gore can be stymied by the possibility of being the first court in over 75 years to strike down a sitting president’s signature domestic achievement.
Congress’ party-line passage of the Affordable Care Act two years ago triggered unceasing speculation over the prospect of a similarly partisan end-game at the Supreme Court. And given the litany of sharply divided conservative victories in the court’s most politically charged cases, casual court watchers would not be unreasonable to expect the five Republican appointees to strike down the Affordable Care Act’s individual health insurance mandate and perhaps the entire law with it.
Reasonable expectations, however, can be wrong. The battle this time is likely to be an intra-conservative conflict between the economic libertarianism underlying the mandate’s challenge and the traditional principles of judicial restraint that have defined right-wing jurisprudence for more than a half-century.
The Affordable Care Act constitutional saga opens its final chapter on March 26, when the court takes to the bench for six hours of oral arguments over three days. The justices will finally offer scraps of their thinking, through questions and comments to the lawyers before them, to a public hungry for hints of whether Congress exceeded its commerce clause power by requiring virtually all Americans to purchase minimum health care coverage or pay a tax penalty.
Justice Clarence Thomas, whose six years of silence at oral arguments suggest that he’s unlikely to pipe up in health care cases, has long made clear his allegiance to the libertarian camp. He has called time and again for a return to a narrow reading of Congress’ power to regulate interstate commerce that a deeply conservative Supreme Court in the mid-1930s used to provoke a constitutional crisis by invalidating much of President Franklin Roosevelt’s first slate of New Deal legislation.
But it is far from certain that his four conservative colleagues — Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Samuel Alito — will join Thomas to repeat that repudiated era of court history.
Since FDR prevailed over the court in 1937, there has been a mainstream consensus on the left and the right that Congress has the broad power to regulate any conduct that, in the aggregate, substantially affects interstate commerce. At its most expansive, this has meant, as the court decided in 1942’s Wickard v. Filburn, that Congress can forbid a farmer from growing excess wheat for personal consumption.
From the 1950s through the early 1970s, the court took a decidedly left turn on issues including school prayer, civil rights, criminal procedure and abortion rights. Most conservative lawyers who came of age during the second half of the 20th century were therefore more concerned with correcting the “excesses” of the court’s liberalism than with using the judiciary to curb Congress’ regulatory reach, said Eric Claeys, a professor at George Mason University School of Law.
“It is crucial to remember that Roberts and Alito both went to law school in the 1970s and both did significant service in the Reagan administration,” said Claeys, who last summer wrote “Obamacare and the Limits of Judicial Conservatism” in National Affairs. In Roberts’ and Alito’s milieu, liberals were the judicial activists. Conservatives practiced restraint.
Justice Scalia championed judicial restraint as a conservative value in his posts as a law professor, government lawyer and federal judge. Debating a prominent libertarian law professor in 1984, then-Judge Scalia described calls for activism on economic rights as a “moment of truth for many conservatives who have been criticizing the courts in recent years. They must decide whether they really believe, as they have been saying, that the courts are doing too much, or whether they are actually nursing only the less principled grievance that the courts have not been doing what they want.”
On the bench, Scalia has had an ambivalent relationship with the commerce clause. He, along with Justice Kennedy, joined the court’s conservative majority in the only two instances since 1936 that the court struck down an act of Congress on interstate commerce grounds. In 1995, they voted to invalidate the Gun-Free School Zones Act as insufficiently related to commercial conduct and did the same in 2000 to a portion of the Violence Against Women Act.
Nevertheless, in neither of those cases did Scalia or Kennedy question Congress’ power to regulate what he saw as bona fide commercial conduct. Reaffirming the Filburn decision in 2005, they joined with the court’s liberals to find that federal laws regulating the national market for illicit drugs permitted Congress to prevent a woman from growing her personal crop of state-legalized medical marijuana.
The 26 states and several private parties challenging the Affordable Care Act concede that health care is a national market, but say that Congress cannot force someone to partake in that market by mandating the purchase of health insurance.
Neal Katyal, the former acting U.S. solicitor general, said in an interview with HuffPost that the government responds to this argument by saying that “everyone consumes health care in this country.”
“Right now 50 million people don’t have insurance, so it means that you and I essentially are paying for them,” said Katyal, who defended the law in front of three appeals courts. “Congress said, ‘Let’s fix that system and make it so that everyone has a certain amount of insurance.'”
Next week’s health care cases come from the U.S. Court of Appeals for the 11th Circuit, which did not buy the government’s argument. But high-profile conservative judges on two other appeals courts did. Sixth Circuit Judge Jeffrey Sutton, a former Scalia law clerk, was the first among all federal judges to cross party lines to uphold the mandate. D.C. Circuit Judge Laurence Silberman, a Reagan-appointed greybeard of the conservative legal movement, did the same.
The challengers’ “view that an individual cannot be subject to Commerce Clause regulation absent voluntary, affirmative acts that enter him or her into, or affect, the interstate market expresses a concern for individual liberty that seems more redolent of” the cramped pre-1937 view of economic regulation, wrote Silberman. That reading “has no foundation in the Commerce Clause,” he concluded.
Georgetown Law professor Randy Barnett, one of the intellectual architects of the health care law challenge and lawyer for the private plaintiffs, told HuffPost that these decisions “have to do with what [the judges] think the role is as a lower court judge: following Supreme Court precedent.” That responsibility, Barnett noted, is “a constraint that the Supreme Court is not as under as much as lower court judges are.”
But Barnett, unlike Sutton and Silberman, finds the health insurance mandate entirely unprecedented. And when there is no precedent, there is no need for judicial restraint. “I’m only in favor of judicial restraint insofar as it means following the Constitution, and I don’t know anybody who thinks the court should not strike down unconstitutional laws, on the left or right.”
If only the calculus were that simple. The court’s conservative bloc has had no problem recently striking down or calling into question state and federal laws big and small as violations of the First, Second and 10th Amendments. But invalidating a sitting president’s signature legislative victory on commerce clause grounds is freighted with deeply unpleasant institutional memories both for the court and the conservative legal movement. If the individual mandate is as unpopular among Americans as public opinion polls report, then the court can let the democratic process play out and, by exercising restraint, collect political capital for the battles ahead on affirmative action, campaign finance, the Voting Rights Act and perhaps even abortion that really matter to the court’s majority.
© 2012, agentleman.
Tea Party Questions Constitutionality Of GOP Bill Repealing Medicare Reform Provision SAHIL KAPUR
The right is giving House GOP leaders a collective headache.
They were already under fire from conservative members for taking a piecemeal approach to repealing the health care law. Now conservative activists are after them for abandoning Tea Party principles at the same time.
Caught in the middle of these related attacks is President Obama’s Medicare cost-cutting panel — the Independent Payment Advisory Board (IPAB), which was created by the health care law.
The House is poised to vote this week to repeal IPAB. A small but vocal contingent of dissatisfied, all-or-nothing Republicans worries that this strategy is too timid, and will lead the public to conclude that some parts of the law are acceptable.
But Tea Party activists are upset about something else entirely. GOP leadership has opted to fund the $3.1 billion cost of repealing IPAB with legislation written by Rep. Phil Gingrey (R-GA) that would reform medical malpractice laws. That’s a problem not just for the handfuls of House Democrats who want to scrap IPAB, but also for conservatives who believe federal malpractice award caps are unconstitutional.
Judson Phillips, the leader of Tea Party Nation, fired off an email to supporters Monday lamenting the GOP’s pay-for, claiming House leaders need a “refresher course” on the 10th Amendment. “The IPAB repeal ought to be fairly simple. Even some Democrats are on board with it,” he wrote. “The Republican leadership decided to play stupid political tricks and attach the Medical Malpractice bill to the IPAB repeal bill.”
The measure in question caps the amount courts can award in non-economic damages for any given medical malpractice lawsuit at $250,000. Tea partiers don’t necessarily have an issue with the concept, but they strongly believe it’s an issue that states, not the federal government, should decide. And they cite the 10th Amendment as evidence that malpractice damage caps imposed by Congress infringe on states’ rights.
“The 10th Amendment does not say that the powers granted to the states can be usurped simply because the right party is in power,” Phillips wrote. “Whether you think tort reform is a good idea or not, it is an issue that belongs to the states, not to the federal government. Tort law has always been governed by the states.”
The constitutional concern was shared by the conservative Heritage Foundation, which declared in a Monday evening blog post that the House GOP bill is “misguided” because “the law governing medical malpractice claims is a state issue, not a federal issue.” The post argued that “Congress has no business (and no authority under the Constitution) telling states what the rules should be governing medical malpractice claims.”
Jen Talaber, a spokeswoman for Gingrey, told TPM that the bill addresses 10th Amendment concerns by letting state laws capping malpractice award supercede the federal limit, regardless of their level. “Detractors of lawsuit abuse reform, namely Democrats and the trial lawyer lobby, have attempted to turn this into a 10th Amendment issue,” she said. “It is not.”
The bill, Talaber said, would “ensure that current or future state law addressing issues such as non-economic damages would supersede the federal law. Further, juries in different states may still award as much as they see fit to compensate a patient for economic damages.”
That hasn’t appeased all conservatives. Reps. Louie Gohmert (R-TX) and Ted Poe (R-TX) objected to the legislation in the Judiciary Committee last year, forcing top Republicans to shelve it indefinitely, after they twisted arms to clear the bill through the panel. Virginia’s conservative Attorney General Ken Cuccinelli was so troubled by the measure, he vowed last year to challenge it in court if Republicans managed to turn it into law.
It’s not clear the conservative objections will carry enough weight with the GOP to endanger the bill. Republicans see IPAB as a long-term threat to their years-long goal of turning Medicare into a private insurance system. But they may well lose their bipartisan cover.
Speaker John Boehner’s office previewed the vote this way: “The House will act this week to repeal another part of ObamaCare: IPAB, which empowers a board of unelected bureaucrats to deny care and raise costs. This will be the 26th vote the House will take to repeal all or part of ObamaCare, which is a big part of the regulatory onslaught coming out of Washington, DC.”
The question now is whether the anti-“Obamacare” message will be enough to completely unify the GOP. It may not pass muster with conservative purists who, as Phillips put it in his email, view the 10th Amendment as “one of the best defenses we have against tyranny.”
© 2012, agentleman.