Supreme Court begins debating sweeping health care law


I'm Biv Dick Black, the Over Poster.
Supreme Court begins debating sweeping health care law

Washington (CNN) -- The U.S. Supreme Court on Monday began three days of potentially landmark oral arguments over the constitutionality of the sweeping health care law championed by President Barack Obama.
In one of the most politically-charged cases in years, the health care reform case drew people waiting in line since Friday for the chance to attend and competing news conferences by supporters and opponents of the 2010 law passed by Democrats over united Republican opposition.
According to the court, 110 members of the public -- almost double the initial estimate -- were admitted to watch the arguments, along with 117 credentialed members of the media.
The public sessions started Monday with a planned 90-plus minutes of debate on a legally dense, but nonetheless important, question.
It boils down to this question: Is the health care law's key provision a "tax" that could prevent the court from considering the broader constitutional questions?
That provision is the "individual mandate" requiring most Americans to purchase some form of health insurance or face a substantial tax penalty.
An obscure federal law known as the Anti-Injunction Act, which dates back to 1867, bars claimants from asking for a refund on a tax until that tax has been collected and paid.
This "gateway" issue could stop the current legal fight in its tracks if the justices indeed think the minimum coverage requirement amounts to a tax.
In an unusual twist, the Obama administration is now siding with the law's opponents and will argue the mandate is not a tax. The high court actually designated a Washington private attorney, Robert Long, to argue in favor of the tax question.
Citing that 1867 law might give the court, particularly conservative members, a way out of deciding the explosive issue in an election year.
The high court's majority might conclude the political branches can best resolve the conflicts, at least for now, or that the matter can be handled after the November elections. Some court watchers have called this the health care "sleeper issue" that could potentially delay a decision on the constitutionality of the individual mandate for at least four years.
The larger, separate question of the individual mandate's constitutionality will be argued at the high court Tuesday.
Monday's case is Department of Health & Human Services v. Florida (11-398).
Four big issues: Breaking down what the justices will tackle
CNN Explains: Health care reform
The justices know their eventual rulings could establish profound guidelines on the extent of congressional power and could shake up a presidential election year where health care has become a hot campaign topic.
"The social and political stakes just in this case in particular are quite significant, but even beyond that, there are broader constitutional principles," said Paul Clement, who will argue against the law before the justices. "This is a legal question and it's got a lot of people excited politically."
"The Affordable Care Act moves us very close to achieving health coverage for everyone," said Ron Pollack, executive director of Families USA, a health advocacy group. "It's my hope that the justices protect the law and allow the law to go into effect."
Health reform opponent: 'Congress made a bad situation worse'
Health reform supporter: 'It really is going to help the public'
Seats inside the court were scarce, both for interested parties and the public. Because of demand, the court's clerk told representatives from Congress, the Obama administration, the states and the dozens of private advocacy groups to decide among themselves who will attend.
For example, 26 states are leading the legal challenge before the Supreme Court, but there will only be room for six attorneys general to attend the arguments. Legal sources said those negotiations over the choices turned testy when some officials were not picked.
Blockbuster court rulings during election years
Sen. Max Baucus, D-Montana; Sen. Orrin Hatch, R-Utah; and U.S. Rep. Michele Bachmann, R-Minnesota, have said they secured a precious seat.
Attorney General Eric Holder will lead the administration contingent.
And although it is little known, the justices themselves are allowed to give out up to nine tickets to anyone they want, so having an "in" with the bench might be the only way some interested parties will be admitted.

The Supreme Court: How it actually works
Dueling rallies and protests outside the court added to the charged atmosphere.
On Sunday, about a dozen people lined the sidewalk in front of the Supreme Court, along with their lounge chairs, blankets and umbrellas, hoping to obtain tickets.
Jill Andres has seen the court in action before. Andres attended hearings for the Wal-Mart discrimination case last year, and that experience has her excited to see history a second time around.
Andres said she is hoping to see the "insight into the nuances of the law that are interesting."
Two families, two views on health care reform
Others have made quite a trek to be in Washington.
"I'm here for myself and my family," said attorney Kathie Mcclure. She traveled from Atlanta and has been camping out since Friday to secure a seat into the courtroom.
"I'm interested in this issue because my kids are chronically ill. I have a son who has Type 1 diabetes and a daughter who has epilepsy."
In line to secure a rare and precious thing in D.C.
Six lawyers will make their case in what is expected to be free-wheeling question-and-answer sessions characteristic of oral arguments. The main attorneys will be Clement on one side, representing the 26-state coalition opposing the law. Defending the law will be Solicitor General Donald Verrilli.
The public will be able to listen to the oral arguments on the court's website shortly after the sessions end.
Frequently asked questions: A CNN guide to the arguments
The cases are Dept. of Health and Human Services v. Florida (11-398); National Federation of Independent Business v. Sebelius (11-393); and Florida v. Dept. of H&HS (11-400). Rulings are expected in June.
Spoiler is for size. This should be a sane, rational debate.


I'm interested in this issue because my kids are chronically ill. I have a son who has Type 1 diabetes and a daughter who has epilepsy."
Stop poisoning them with shitty food.


I'm Biv Dick Black, the Over Poster.
High court takes up fight over Obama health law
By MARK SHERMAN Associated Press Published: Mar 26, 2012 at 6:48 AM PDT Last Updated: Mar 26, 2012 at 10:30 AM PDT
Share this story

Comments (70)printemail »Play Video
Protesters in favor of health care reform demonstrate outside of the Supreme Court, Monday, March 26, 2012, as a hearing on President Obama's health care legislation began. (AP Photo/Jacquelyn Martin)
Story Photos
Photos » Supreme Court Health Care Supreme Court Health Care Supreme Court Health Care Supreme Court Health Care WASHINGTON (AP) - The Supreme Court plunged into debate Monday on the fate of the Obama administration's overhaul of the nation's health care system, and the justices gave every indication they will not allow an obscure tax law to derail the case.

A decision is expected by late June, in the midst of a presidential election campaign in which all of President Barack Obama's Republican challengers oppose the law and promise its repeal if the high court hasn't struck it down in the meantime.

With demonstrators chanting outside, eight of the nine justices eagerly jumped into questioning of lawyers about whether the case has been brought prematurely because a 19th century law bars tax disputes from being heard in the courts before the taxes have been paid.

Under the new health care law, taxpayers who don't purchase health insurance would have to report that omission on tax returns for 2014 and would pay a penalty along with federal income tax on returns due by April 2015. Among the issues is whether that penalty is a tax.

Solicitor General Donald Verrilli Jr., defending the health law, urged the court to decide what he called "the issues of great moment" at the heart of the case.

The 26 states and a small business group challenging the law also want the court to go ahead and decide on its constitutionality now.

But one lower court that heard the case, the federal appeals court in Richmond, Va., said the challenge is premature. No justice seemed likely to buy that argument Monday.

The justices fired two dozen questions in less than a half hour at Washington attorney Robert Long, who was defending the appeals court ruling.

"What is the parade of horribles?" asked Justice Sonia Sotomayor, if the court decides that penalties are not a tax and the health care case goes forward? Long suggested it could encourage more challenges to the long-standing system in which the general rule is that taxpayers must pay a disputed tax before they can go to court.

The questions came so quickly at times that the justices interrupted each other. At one point, Justices Ruth Bader Ginsburg, Elena Kagan and Sotomayor started speaking at the same time. Chief Justice John Roberts, acting as traffic cop, signaled Ginsburg to go first, perhaps in a nod to her seniority. Only Justice Clarence Thomas, as is his custom, stayed out of the fray.

Attorney General Eric Holder, Health and Human Services Secretary Kathleen Sebelius, Republican Sen. Jeff Sessions of Alabama and Florida Attorney General Pam Bondi were in the crowd that filled the courtroom's 400 seats.

Outside the court building, about 100 supporters of the law walked in a circle holding signs that read, "Protect my healthcare," and chanting, "Care for you, care for me, care for every family." A half-dozen opponents shouted, "We love the Constitution!"

Republican presidential candidate Rick Santorum was there, too, declaring anew that GOP front-runner Mitt Romney has no standing to challenge Obama on the law since Massachusetts passed a somewhat similar version when Romney was governor. Santorum said, "If you really want Obamacare repealed there's only one person who can make that happen."

A four-person student band from Howard University was part of the group favoring the law, playing New Orleans-style jazz tunes.

The law, much of which has still to take effect, would require almost all Americans to obtain health insurance and would extend coverage to more than 30 million people who now lack it. The law would be the largest expansion in the nation's social safety net in more than four decades.

People hoping for a glimpse of the action had waited in line all weekend for the relatively few seats open to the public. The justices allotted the case six hours of argument time, the most since the mid-1960s.

Nurses Lauri Lineweaver and Laura Brennaman, who are completing doctoral degrees, had been waiting since noon Sunday and got tickets to see arguments. "It's an honor to be in the court," said Lineweaver, 35.

The court will release audio recordings of the arguments on the same day they take place. The first time that happened was when the court heard argument in the Bush v. Gore case that settled the 2000 presidential election. The last occasion was the argument in the Citizens United case that wound up freeing businesses from longstanding limits on political spending.

Outside groups filed a record 136 briefs on various aspects of the court case.

The first arguments Monday concern whether the challenge is premature under a 19th century tax law because the insurance requirement doesn't kick in until 2014 and people who remain uninsured wouldn't have to pay a penalty until they file their 2014 income taxes in early 2015.

Taking this way out of the case would relieve the justices of rendering a decision in political high season, just months before the presidential election.

The biggest issue before the court is Tuesday's argument over the constitutionality of the individual insurance requirement. The states and the National Federation of Independent Business say Congress lacked authority under the Constitution for its unprecedented step of forcing Americans to buy insurance whether they want it or not.

The administration argues Congress has ample authority to do what it did. If its action was rare, it is only because Congress was dealing with a problem that has stymied Democratic and Republican administrations for many decades: How to get adequate health care to as many people as possible, and at a reasonable cost.

The justices also will take up whether the rest of the law can remain in place if the insurance mandate falls and, separately, whether Congress lacked the power to expand the Medicaid program to cover 15 million low-income people who currently earn too much to qualify.

If upheld, the law will force dramatic changes in the way insurance companies do business, including forbidding them from denying coverage due to pre-existing medical conditions and limiting how much they can charge older people.

The law envisions that insurers will be able to accommodate older and sicker people without facing financial ruin because of its most disputed element, the requirement that Americans have insurance or pay a penalty.

By 2019, about 95 percent of the country will have health insurance if the law is allowed to take full effect, the Congressional Budget Office estimates.

Reams of court filings attest that the changes are being counted on by people with chronic diseases, touted by women who have been denied coverage for their pregnancies, and backed by Americans over 50 but not yet old enough to qualify for Medicare, who face age-inflated insurance premiums.

Republicans are leading the fight to kill the law either by the court or through congressional repeal. They say the worst fears about what they derisively call "Obamacare" already have come to pass in the form of higher costs and regulations, claims that the law's supporters dispute.

The White House says it has little doubt the high court will uphold the law, and that even its opponents will eventually change their tune.

"One thing I'm confident of is, by the end of this decade, we're going to be very glad the Republicans termed this `Obamacare,' because when the reality of health care is in place, it's going to be nothing like the kind of fear-mongering that was done," said David Plouffe, a senior adviser to the president, said Sunday in an interview with ABC's "This Week."

Polls have consistently shown the public is at best ambivalent about the benefits of the health care law, and that a majority of Americans believe the insurance requirement is unconstitutional.

Lord Zero

Viciously Silly
#5 said:
Obamacare, Two Years Later
by Michael D. Tanner

This article appeared in National Review Online on March 21, 2012.

This week marks two years since of the passage of the Patient Protection and Affordable Care Act, and if the Obama administration has chosen to all but ignore the second anniversary of Obamacare, the rest of us should pause and reflect on just what a monumental failure of policy the health-care-reform law has been.

What’s more, it has been a failure on its own terms. After all, when health-care reform was passed, we were promised that it would do three things: 1) provide health-insurance coverage for all Americans; 2) reduce insurance costs for individuals, businesses, and government; and 3) increase the quality of health care and the value received for each dollar of health-care spending. At the same time, the president and the law’s supporters in Congress promised that the legislation would not increase the federal-budget deficit or unduly burden the economy. And it would do all these things while letting those of us who were happy with our current health insurance keep it unchanged. Two years in, we can see that none of these things is true.

For example, we now know that, contrary to claims made when the bill passed, the law will not come close to achieving universal coverage. In fact, as time goes by, it looks as if the bill will cover fewer and fewer people than advertised. According to a report from the Congressional Budget Office released last week, Obamacare will leave 27 million Americans uninsured by 2022. This represents an increase of 2–4 million uninsured over previous reports. Moreover, it should be noted that, of the 23 million Americans who will gain coverage under Obamacare, 17 million will not be covered by real insurance, but will simply be dumped into the Medicaid system, with all its problems of access and quality. Thus, only about 20 million Americans will receive actual insurance coverage under Obamacare. That’s certainly an improvement over the status quo, but it’s also a far cry from universal coverage — and not much bang for the buck, given Obamacare’s ever-rising cost.

At the same time, the legislation is a major failure when it comes to controlling costs. While we were once told that health-care reform would “bend the cost curve down,” we now know that Obamacare will actually increase U.S. health-care spending. This should come as no surprise: If you are going to provide more benefits to more people, it is going to cost you more money. The law contained few efforts to actually contain health-care costs, and the CBO now reports that many of the programs it did contain, such as disease management and care coordination, will not actually reduce costs. As the CBO noted, “in nearly every program involving disease management and care coordination, spending was either unchanged or increased relative to the spending that would have occurred in the absence of the program, when the fees paid to the participating organization were considered.”

This failure to control costs means that the law will add significantly to the already-crushing burden of government spending, taxes, and debt. According to the CBO, Obamacare will cost $1.76 trillion by 2022. To be fair, some media outlets misreported this new estimate as a doubling of the law’s originally estimated cost of $940 billion. In reality, most of the increased cost estimate is the result, not of increased programmatic costs, but of an extra two years of implementation. Still, many observers warned at the time that the original $940 million estimate was misleading because it included only six years of actual expenditures, with the ten-year budget window. The new estimate is, therefore, a more accurate measure of how expensive this law will be. Yet even this estimate covers only eight years of implementation. And it leaves out more than $115 billion in important implementation costs, as well as costs of the so-called doc fix. It also double-counts Social Security taxes and Medicare savings. Some studies suggest a better estimate of Obamacare’s real ten-year cost could run as high as $2.7–3 trillion. And this does not even include the over $4.3 trillion in costs shifted to businesses, individuals, and state governments.

All this spending means that we will pay much more in debt and taxes. But we will also pay more in insurance premiums. Once upon a time, the president promised us that health-care reform would lower our insurance premiums by $2,500 per year. That claim has long since been abandoned. Insurance premiums are continuing to rise at record rates. And, while there are many factors driving premiums up, Obamacare itself is one of them. According to the Kaiser Family Foundation, insurance premiums had been rising at roughly 5 percent per year pre-Obamacare. That jumped to 9 percent last year. And roughly half that four-percentage-point increase can be directly attributed to Obamacare. Even Jonathan Gruber of MIT, one of the architects of both Obamacare and Romneycare, now admits that many individuals will end up paying more for insurance than they would have without the reform — even after taking into account government subsidies — and that those increases will be substantial. According to Gruber, “after the application of tax subsidies, 59 percent of the individual market will experience an average premium increase of 31 percent.”

Finally, if the past two years should have taught us anything, it is that we may not be able to keep our current insurance, even if we are happy with it. The CBO suggests that as many as 20 million workers could lose their employer-provided health insurance as a result of Obamacare. Instead, they will be dumped into government-run insurance exchanges. And, the recent dust-up over insurance coverage for contraceptives is a clear illustration of how the government will now be designing insurance plans for all of us. Regardless of how one feels about the contraceptive mandate itself, it is just the tip of the iceberg as government mandates tell employers what insurance they must provide, and tell us what insurance we must buy, even if that insurance is more expensive, contains benefits we don’t want, or violates our consciences.

Next week, Obamacare will slouch its way to the Supreme Court. How the justices decide will be based on questions of constitutional law. Their decision will set a crucial precedent in setting the boundaries between government power and individual rights. But regardless of whether the Court upholds Obamacare or strikes it down, in whole or in part, we should understand that, simply as a matter of health-care reform, Obamacare is a costly and dangerous failure.


Registered User
Kagan Must Recuse Herself from Obamacare Case

By Sen. Jeff Sessions
February 23, 2012 3:09 P.M.

As solicitor general of the United States, Justice Elena Kagan served as the head of an office responsible for formulating the Obama administration’s legal defense of its domestic agenda priority — Obamacare. It could be no surprise to President Obama who appointed her to the Supreme Court that any former solicitor general would have many conflicts for years to come. Now, the Court will soon hear a constitutional challenge to the health-care law. Despite mounting evidence of her substantial participation in the administration’s legal defense of that law, she still has not announced whether she will recuse herself from presiding over the case as a justice.

According to Section 455(b)(3) of Title 28 of the U.S. Code, justices must disqualify themselves in cases where they have “served in governmental employment and in such capacity participated as counsel, adviser, or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy.” In United States v. Gipson, the Tenth Circuit held that judges must recuse themselves if they have “previously taken a part, albeit small, in the investigation, preparation, or prosecution of a case.” Other courts have suggested that, merely by virtue of a lawyer’s position as the head of an office during the preparation of a case, he or she is disqualified to sit as a judge on that case. For example, several U.S. Circuit Courts of Appeal have held that U.S. attorneys who later become judges must recuse themselves from any proceeding that had been pending in any way in their offices, even if they were not substantively involved.

Previously undisclosed e-mails that the Justice Department has released pursuant to court order demonstrate Kagan’s direct involvement in the administration’s defense of the president’s health law from the very beginning. In January 2010, she assigned her chief and only political deputy, Neal Katyal, to the matter — the legal equivalent of a firm’s senior partner delegating work to a junior associate. That same month Katyal wrote in an e-mail to the associate attorney general’s office that “Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues.” These actions alone constitute personal participation in the preparation of the case, and that is all §455(b)(3) requires to trigger mandatory recusal.

Kagan herself has admitted that she attended “at least one meeting” in which the case now before the Court was mentioned, but the e-mails show that she also was privy to discussions of the administration’s litigation strategy at least up until the announcement of her nomination on May 10, 2010. On March 18, Katyal e-mailed Deputy Attorney General Tom Perrelli and copied Kagan, discussing in detail and providing an Internet link to a draft complaint in potential litigation. He wrote: “For what it is worth, my advice (I haven’t discussed this with Elena, but am cc’ing her here) would be that we start assembling a response, [material redacted] so that we have it ready to go.” And at least one e-mail suggests that discussions of litigation strategy were deliberately not conducted in written form. On March 21, Katyal e-mailed Kagan to ask whether she would attend a key White House meeting on health-care litigation strategy. Kagan responded: “What’s your phone number?” These actions further support the need for her recusal.

It appears that Kagan and Katyal were cognizant of the recusal issue. On May 17, Katyal forwarded Kagan an e-mail he had just sent to Justice Department spokesperson Tracy Schmaler, in which he falsely asserted (as the previous e-mails show) that Kagan “has never been involved in any of it [health-care litigation]. I’ve run it for the Office, and have never discussed the issues with her one bit.” Ironically, Kagan responded minutes later to both Katyal and Schmaler: “This needs to be coordinated. Tracy, you should not say anything about this before talking to me.”

Some have attempted to manipulate this legal analysis by seeking to equate the facts surrounding Kagan’s prior involvement in the health-care case with an entirely different set of facts regarding Justice Thomas’ wife’s former employer, which took a position on the constitutionality of Obamacare after she left the organization. But those allegations bear no relationship to any legal standard for recusal, and are so specious that they have been rejected by scholars and legal commentators across the ideological spectrum. Justice Breyer summarily dismissed this as a “false issue.”

Recusal due to previous participation in a case is not an admission of wrongdoing, but rather an expected consequence when a government lawyer accedes to the bench. Indeed, Justice Thurgood Marshall — the last solicitor general to become a justice, and the justice for whom Kagan clerked — recused himself from 98 of the 171 cases decided by the Court in his first year, and most of them were cases in which the federal government was a party.

Justice Kagan has recognized that her involvement as solicitor general in the preparation of the government’s challenge to Arizona’s immigration law prohibits her involvement in that case as a judge — even though the lawsuit was not filed until two months after she ceased performing the duties of her office due to her nomination, and even though she testified that she was not asked to express an opinion on the Arizona law. In contrast, Justice Kagan’s involvement in the preparation of the government’s defense of the health-care law began at least as early as January 2010, four months before her nomination and two months before the bill became law. That she would not follow the same course in the health-care case is dubious. These facts require recusal.

— Senator Jeff Sessions is a senior member of the Judiciary Committee.
I see she didn't recuse herself. Corruption in the Obama admin, shocking.

Hate & Discontent

Yo, homie. Is that my briefcase?
Several articles on Drudge make it look like it's all over but the screaming - Obamacare expected to be declared unconstitutional, and the entire law is likely to be tossed.


Victim of high standards and low personal skills.
Several articles on Drudge make it look like it's all over but the screaming - Obamacare expected to be declared unconstitutional, and the entire law is likely to be tossed.
Eh. I'll believe it when I see it. SCOTUS is notorious in zigging when you think they're zagging.

Hate & Discontent

Yo, homie. Is that my briefcase?
Eh. I'll believe it when I see it. SCOTUS is notorious in zigging when you think they're zagging.
From the LA Times:

The court’s conservatives sounded as though they had determined for themselves that the 2,700-page measure must be declared unconstitutional.

"One way or another, Congress will have to revisit it in toto," said Justice Antonin Scalia.

Agreeing, Justice Anthony Kennedy said it would be an "extreme proposition" to allow the various insurance regulations to stand after the mandate was struck down.
If Kennedy is agreeing that the law has to go, that pretty much seals the deal.


Screw you guys, I'm going home.
Justice Scalia is kicking ass. I have heard him give speeches and q&a at some events before and he really is a brilliant jurist.

Now the old jew? Not so much.


Passive agressive douche
There's already been more time spent on the reading of this bill in the past day than what was done by all the representatives combined before it was voted on.


Liberal Psycopath
And who's going to pass it? The Republican Congress or the soon to be Republican Senate?
The Pubs had better have an alternative plan up their sleeves or they risk never seeing the inside of the Capitol building again.


Registered User
Several articles on Drudge always make it look like Obama always does the wrong thing and that anything he does is doomed no matter what
fixed it for you.

do you expect Drudge to post links to stories that say anything else?


Registered User
Anyone else actually listen to all the oral arguments? It was tedious.


Registered User
Eh. I'll believe it when I see it. SCOTUS is notorious in zigging when you think they're zagging.

oral argument "trends" in questioning usually mean nothing to the outcome of the case. If anything, the justices try to draw out the last bit of reasoning from a "winning" side so that these arguments can be used to bolster the conclusions that they come to.

it would be unwise to try and guess the outcome of a case from the tone of the oral arguments.


Registered User
I've been hearing a lot of pundits saying that the SCOTUS ruling against Obamacare could actually hurt the Republicans in November, since it takes away one of their major issues. If they rule in favor of it, the Reps have an argument to make that now they're the only defense against the law going into effect.


I'm Biv Dick Black, the Over Poster.
The Pubs had better have an alternative plan up their sleeves or they risk never seeing the inside of the Capitol building again.
They do have an alternative plan; no national health care. Which happens to be the plan most Americans support.


Liberal Psycopath
They do have an alternative plan; no national health care. Which happens to be the plan most Americans support.
Ummm Medicare is National Health care. Will SCOTUS get rid of that too? I don't think that option would be overly popular with people.
I've been hearing a lot of pundits saying that the SCOTUS ruling against Obamacare could actually hurt the Republicans in November, since it takes away one of their major issues. If they rule in favor of it, the Reps have an argument to make that now they're the only defense against the law going into effect.
That's a possibility. I think that both sides will benefit from whatever the decision is, come election time.


PR representative for Drunk Whiskeyguy.
I've been hearing a lot of pundits saying that the SCOTUS ruling against Obamacare could actually hurt the Republicans in November, since it takes away one of their major issues. If they rule in favor of it, the Reps have an argument to make that now they're the only defense against the law going into effect.
Eh, I think that's kinda BS. SCOTUS overturning Obamacare says it was unconstitutional, and eliminates one of his main accomplishments of his presidency.