MARY AGNES CAREY, KAISER HEALTH NEWS: Welcome to Kaiser Health News, I’m Mary Agnes Carey. By a vote of 6-3, the Supreme Court today upheld the health law subsidies that helped millions of Americans purchase health insurance. With me now to discuss the decision is legal analyst Stuart Taylor of the Brookings Institution, and Kaiser Health News Senior Correspondent Julie Appleby. Thanks to both of you for being here.

STUART TAYLOR JR., THE BROOKINGS INSTITUTION: Nice to be with you.

JULIE APPLEBY, KAISER HEALTH NEWS:  Good to be here.

MARY AGNES CAREY: Stuart, I want to start with you. I want to talk about ]what Chief] Justice Roberts wrote for the majority.  Why did he uphold the administration on this subsidy issue?

STUART TAYLOR JR.: The chief justice began by acknowledging that a few poorly words in this 2,700-page law, if they were interpreted literally, would cripple the Affordable Care Act in 34 states for complicated reason. So he said, but we don’t have to interpret these words literally, we shouldn’t interpret them literally, because when you read them in the structure of lots of interlocking provisions of this statute, in that context and in the overall structure, they become ambiguous. And then you look to what was Congress trying to accomplish here? They were trying to improve insurance markets all over the country. We shouldn’t interpret this law, unless we really have to, in terms of language, as having to destroy health insurance markets.

Because he explained that it would destroy health insurance markets if the Obama interpretation were rejected. First, it would mean there would be no premium subsidies for millions and millions of people in those 34 states. Then, many of them wouldn’t be able to apply for insurance. They wouldn’t buy insurance; others would no longer have to buy the insurance for complicated reasons, and there would be what he called the “death spiral.” With premiums soaring because only sick people are getting insured, he says, Congress certainly didn’t mean that to happen. And that heavily influenced his interpretation.

MARY AGNES CAREY: Justice Scalia wrote the dissent. He was equally as spirited in a completely different reading.

STUART TAYLOR JR.:  Yes, I’m just looking at some of his adjectives, he’s always fun for adjectives. Absurd, feeble, indefensible and my favorite was a noun interpreted “jiggery pokery.”

MARY AGNES CAREY: Yeah, I like that one.

STUART TAYLOR JR.: Those were the ways he characterized the Roberts’ opinion and he went on in his usual eloquent hyperbolic dyspeptic way for 21 pages to trash the majority opinion. And Roberts responded, as is customary in majority opinions, in a much more measured fashion in a few little footnotes saying well Justice Scalia says X or the defense says Y, but we disagree, here’s why.

MARY AGNES CAREY: So in the dissent, the words “established by the state” were interpreted much more literally as an exchange established by the State. That’s how I read that as well.

STUART TAYLOR JR.: Exactly and that’s what was forecast and that’s the whole argument in the case. Does the fact that they said subsidies are available in exchanges, marketplaces established by the state as opposed to those established by the federal government, are people in those ineligible unless they are established by the State,

Does that mean you can’t get a subsidy? And the dissent basically said, “It means what it says, it says what it means.”  And the majority said, “Ah, not so fast.” Sometimes, things don’t say exactly what they seem to say when you read them in their larger context.

MARY AGNES CAREY:  Going back to the majority opinion for a minute, is it written in a way that a future Internal Revenue Service couldn’t come in and say then subsidies aren’t available in the federally run exchanges.

STUART TAYLOR JR.: No, Chief Justice Roberts ruled that out, basically. The question was debated at oral argument. In fact, Roberts asked, if we’re deferring to the interpretation of the IRS, does that mean a new IRS could come along and say we’re changing it? And he mooted that question in the decision by saying, we’re not deferring to the interpretation of the IRS. We’re agreeing with the interpretation of the IRS, but it’s our interpretation and the IRS can’t change it.

MARY AGNES CAREY:  And Julie, let’s talk a little bit about the administration, the Democrats.  They must be just elated over this. What’s been the reaction?

JULIE APPLEBY:  You know, a little while ago, the president came out of the White House and gave a short speech. And basically, he said that after more than 50 attempts to repeal this, after a presidential election, after a couple of Supreme Court challenges, he said the ACA is here to stay.

So he made that very clear: The ACA is here to stay.  He went on to say the Supreme Court upheld a very critical part of this law — the subsidies that more than 6.8 million people are currently receiving. But I think in a nod to some of the discussion about repeal, he also mentioned the broader context here — that this law affects a lot of Americans. And he mentioned a few things. He mentioned being able to keep your kids on your plan until they’re age 26, and he mentioned the fact that insurers can no longer reject people who have medical conditions. So he tried to show that this is a broad-reaching law. He did come out and say that he wants to work with the Republicans and the Democrats. He acknowledged there’s more that needs to be done, and he said he would work with them.  He called out some of the states that haven’t yet expanded Medicaid. There are about 20 states who haven’t expanded eligibility for the Medicaid program and he said he would be working with the governors and legislatures there to try to encourage them to do that.

MARY AGNES CAREY:  How about Republicans? What have they been saying today?

JULIE APPLEBY: You know, the Republicans in their official statements are coming out and saying that they’re not happy with this decision, but I do think many of them are breathing a sigh of relief because if the subsidies had gone away they would be in a position where lots of Americans would be losing these tax credits to help them purchase insurance. And they had not coalesced around a plan to fix that or to deal with that. So, I think in many cases they are a little relieved, but at the same time they are continuing to talk about how this is not a good law and it’s fundamentally broken.

MARY AGNES CAREY:  And so it sounds like their efforts to repeal will continue. How does this shape the 2016 presidential election, this decision today? What’s going to be the impact?

JULIE APPLEBY: You know that’s going to be very interesting. I think that Hillary Clinton will certainly make it a big part of her campaign to keep this law in place and say that the Democrats would support that. I think the Republicans are in a little bit more of a difficult situation because repealing is going to mean that you might be taking some things away from millions of Americans who already have it. So that’s a little bit more difficult of a message, but that will probably still be out there. I think this still will be a discussion in the election, but I think there are other issues that may be larger — like the economy.

MARY AGNES CAREY:  Stuart, can you take us through … are there other pending legal challenges to the Affordable Care Act?

STUART TAYLOR JR.: There are at least two, but only one of them, I think, is very serious in terms of any possibility of having much impact on the Act. That’s in a lawsuit brought by the House of Representatives as a body — which is highly unusual — against the administration. The first question is do they have legal standing — can the House of Representatives bring a lawsuit, which is an open question. But the claim they are making is not silly. The claim they are making is that hundreds of millions — hundreds of billions of these subsidies over the next 10 years were not appropriated by Congress; that the administration asked Congress to appropriate this money on a year-by-year basis, and Congress refused. And the Constitution says money can’t be spent by the government unless it’s appropriated by Congress. So that gives the administration a problem. The lawsuit’s being taken seriously by federal District Judge Rosemary Collyer, who sits here in the District of Columbia. But, it’s got a long way to go, and even if it’s successful, which I would bet against, it’s not going to cripple the Obamacare law the way a decision going against the president today would have crippled it.

MARY AGNES CAREY: All right, we’ll leave it there. Thank you so much, Stuart Taylor and Julie Appleby.

JULIE APPLEBY: Thank you.

STUART TAYLOR JR.: Thank you.

The post Why Did The Supreme Court Uphold The Health Law’s Subsidies? appeared first on Stuart Taylor, Jr..

MARY AGNES CAREY: Welcome. I’m Mary Agnes Carey.

By a vote of 5 to 4, the Supreme Court has ruled that family-owned, closely held corporations do not have to comply with the health law’s contraception coverage requirements if they violate the owner’s religious views. Legal analyst Stuart Taylor Jr. joins us now to discuss the decision. Thanks for being with us.

STUART TAYLOR: Nice to be with you.

MARY AGNES CAREY: Why did the court rule this way?

STUART TAYLOR: Well, the court held that under an act of Congress passed in 1993, the Religious Freedom Restoration Act, the right is conferred on all religious groups, including, the court said in this case for the first time, for-profit corporations as well as churches and, say, nonprofit religious groups — they all get broad protection of their religious freedoms. And in a very detailed analysis of the various steps you go through under this law, first, can you invoke protection at all if you’re a for-profit corporation. The court said yes. Then, does it substantially burden your religious exercise. The court said yes, because these companies have objections to providing contraception coverage, and then they go on and say is this the government’s least restrictive means they could use to serve the need of the women who want the contraceptives, in this case. And the court said no; they have other ways they could to it. The government could pay for it or they could use an accommodation they are already using for nonprofit religious employers.

MARY AGNES CAREY: These companies, Hobby Lobby, which is a very well-known craft store, and Conestoga Wood Specialties, which is a cabinet maker, what were their arguments against the contraception mandate?

STUART TAYLOR: Unlike the Catholic groups that are also challenging the mandate, these groups have a religious objection only to what they call abortifacients—the morning after pill, certain kinds of IUDs that they think operate to induce abortion.

Now, it doesn’t induce abortion as the government describes abortifacient, but it does in the beliefs of these companies. And the government says they are entitled to their beliefs. So [companies] say: For us to help someone get that kind of contraception, violates our religious beliefs. We cannot do it without violating our religious beliefs. The government is trying to force us to do it against our religious beliefs, and that puts us in a terrible position, because the fines are enormous for not complying with this provision of the Affordable Care Act.

Anti-abortion advocates cheer in front of the Supreme Court after the decision in Burwell v. Hobby Lobby Stores (Photo by Chip Somodevilla/Getty Images).

For Hobby Lobby, which is a pretty [good-sized] company, it would be fines of $1.3 million a day, or $475 million a year, if it refuses to provide all federally approved contraceptive coverage, including these so-called abortifacients, and they say that’s an intolerable burden: We shouldn’t be put to that choice and the Religious Freedom Restoration Act exempts us from that choice.

MARY AGNES CAREY: What does this ruling mean for female employees of Hobby Lobby and similar companies that have objections to some forms of contraception coverage?

STUART TAYLOR Jr.: In this case, it’s not going to have much effect. In fact, the majority opinion says the effect of this on the women employed by Hobby Lobby and other companies involved in these cases would be precisely zero. And the reason is that the court says if the administration extends the same so-called accommodation to these religious employers who are for-profit companies then it’s already extended to nonprofit Catholic hospitals, nonprofit religious schools, nonprofit religious colleges, and nonprofits – if it extends the same so-called “accommodation” to these for-profit companies, that it has already created for the nonprofit companies, then the women will get the coverage anyway through the same insurance companies that cover everything else.

MARY AGNES CAREY: So these accommodations, the justices suggested, for example, number one, the government can pay for it. Or, they could put into play some accommodations that are already there for religiously affiliated employers, which is having the insurers cover it.

STUART TAYLOR Jr.: Yes, and that’s a tricky little thing that would apply in this case and not many others. And what makes it work is that the cost of providing the contraceptive coverage is really about zero, whether it’s the employers paying for it or whether it’s the insurance company that’s paying for it because they save money on the other end, because they don’t have the child birth expenses, which are larger than contraceptive coverage. So nobody’s really paying out much money. It’s a matter of who’s got the symbolic function of providing the coverage.

This accommodation that’s already been given to nonprofit employers basically says: OK, all you have to do is certify that you have a religious objection to providing this coverage and then the government will require that your insurance company provide the coverage at no cost to you. And that’s what’s being done already in some cases — and what the court now says they can do in the cases of company, for-profit companies like Hobby Lobby.

MARY AGNES CAREY:  There are many other non-profit employers like Catholic hospitals that have said even these accommodations, these other arrangements, are going to violate their religious beliefs. So what does this mean for them?

STUART TAYLOR:  That’s right, and the reason they say it violates their religious beliefs is that they are required, at least by the regulation to certify to the insurance companies that they have this religious objection, then that triggers the insurance companies obligation to provide it. So these companies are saying, yeah, but if we have to certify and then it gets provided that means we are doing what we object to doing, which is providing a link in the chain of causation that leads to women using contraceptives.

BURWELL V. HOBBY LOBBY STORES

• SUPREME COURT LIMITS CONTRACEPTIVE MANDATE FOR CERTAIN EMPLOYERS
• WHAT THE HOBBY LOBBY DECISION MEANS FOR EMPLOYERS
• FAQ: HIGH COURT’S HOBBY LOBBY RULING CUTS INTO CONTRACEPTIVE MANDATE
• COURT RULING GEARED TO ‘CLOSELY HELD’ FIRMS, BUT WHAT IS THAT?
• HOBBY LOBBY DECISION MAY NOT BE THE LAST WORD ON BIRTH CONTROL COVERAGE

So it’s a little peculiar because the court has said that Hobby Lobby and its co-plaintiffs who do not object to the certification can be covered by this, but at least technically the possibility remains that the court would eventually decide that you cannot require, say, Catholic organizations that object to providing the coverage to object to certifying that they won’t provide the coverage to do so.

MARY AGNES CAREY:  Does this ruling mean that privately held for for-profit corporations can ignore other requirements of the health law if they find those requirements objectionable on religious grounds?

STUART TAYLOR:  Justice Ginsburg’s long and eloquent dissent implied that, but the majority and more specifically Justice Kennedy who provided a concurring opinion say that no that wouldn’t really do that, it’s not nearly as broad as Justice Ginsburg says it is. The quote is Justice Kennedy says: The Court’s opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent of Justice Ginsburg’s. So you have a disagreement between the dissent and at least some of the majority of whether this is going to be a far reaching decision or whether it’s going to be one that covers this case and not too many other cases.

MARY AGNES CAREY:  What did Justice Ginsburg mean in her dissent when she called the ruling a decision of startling breadth?

STUART TAYLOR:  She meant that, she went on to say, that it says: The court holds that commercial enterprises, including corporations, can opt out of any law, except tax laws, they judge incompatible with their sincerely held religious beliefs.

It would be a decision of startling breadth if the court had said that. But as the majority and Justice Kennedy’s concurrence both say: No, no, no, Justice Ginsburg. It isn’t nearly as broad as you’re saying it is.

And, by the way, this kind of dialogue is fairly common when dissenters, in order to emphasize what terrible things could happen as the result of a decision they don’t like, they tend to read it as broadly as possible to make it sound worse, and then the majority tends to say: Oh, no, it’s not that broad. And you never really find out how broad it is until the next case comes along.

MARY AGNES CAREY:  What does today’s decision mean for other litigants who are challenging the contraception mandate because they say it violates their religious freedom?

STUART TAYLOR:  I think most of them are going to win their cases if they can make it clear that their religious objections are sincere. I think most of them can, or they don’t file lawsuits.

It should be clear: A public company, certainly a big public company, would not be able to pull off a sincere religious objection of this kind, because the bigger a company gets, the less likely it is that all of the people who have an ownership or management interest in it are of the same religion and share the same objections. So this is, by its nature, this sort of logic is confined to family-owned companies, or maybe companies owned by a small group of like-minded religious people who say their religion is very important to the way they operate their businesses.

Hobby Lobby is quite a big company, for example, but still we’re not talking about General Motors or Ford or McDonald’s or any companies like that.

MARY AGNES CAREY:  That you so much legal analyst Stuart Taylor.

STUART TAYLOR:  Thank you.

The post What The Hobby Lobby Decision Means For Employers appeared first on Stuart Taylor, Jr..

The post Justices To Weigh Contraceptive Mandate Against Religious Freedom Claims appeared first on Stuart Taylor, Jr..

The program, which is run by the U.S. Department of Health and Human Services (HHS), has raised alarms among congressional critics, who call it a “slush fund,” because the department can spend the money as it sees fit and without going through the congressional appropriations process. The sums involved are vast. By 2022, the department will be able to spend $2 billion per year at its sole discretion. In perpetuity.

What makes the Prevention and Public Health Fund controversial is its multibillion-dollar size, its unending nature (the fund never expires), and its vague spending mandate: any program designed “to improve health and help restrain the rate of, growth” of health-care costs. That can include anything from “pickleball” (a racquet sport) in Carteret County, N.C. to Zumba (a dance fitness program), kayaking and kickboxing in Waco, TX.

“It’s totally crazy to give the executive branch $2 billion a year ad infinitum to spend as they wish,” said budget expert Jim Capretta of the conservative Ethics and Public Policy Center. “Congress has the power of the purse, the purpose of which is to insure that the Executive branch is using taxpayer resources as Congress specified.”

The concerns are as diverse as the critics. The HHS Inspector General, in a 2012 “alert,” was concerned that the payments to third-party groups came dangerously close to taxpayer-funded lobbying. While current law bars lobbying with federal money, Obama administration officials and Republican lawmakers differ on where lawful “education” ends and illicit “lobbying” begins. Nor have federal courts defined “lobbying” for the purposes of this fund. A health and Human Services (HHS) department spokesman denies that any laws were broken and the inspector general is continuing to investigate.

Republicans in both the House of Representatives and Senate have complained that much of the spending seems politically motivated and are alarmed that some of the federal money went to groups who described their own activities as contacting state, city and county lawmakers to urge higher taxes on high-calorie sodas and tobacco, or to call for bans on fast-food restaurants within 1,000-feet of a school, or total bans on smoking in outdoor venues, such as beaches or parks. In a May 9 letter to HHS Secretary Sebelius, Rep. Fred Upton (R,Mich) wrote that HHS grants “appear to fund lobbying activities contrary to the laws, regulations, and guidance governing the use of federal funds.” His letter included the latest in a series of requests for more documents and complaints about responses to previous requests.

Some Democrats, including Obamacare champion Sen. Tom Harkin (D, Iowa), are extremely unhappy with another use of Prevention Fund money. The Obama Administration plans to divert $453.8 million this year from that fund to use for administrative and promotional efforts to enroll millions of people in health insurance exchanges that are said to be vital to Obamacare’s success. Harkin calls this shift, which has not been authorized by Congress, “an outrageous attack on an investment fund that is saving lives.”

This extraordinary fund transfer coincides with HHS Secretary Kathleen Sebelius’s much-criticized solicitation of health industry officials for large “voluntary” corporate donations – on top of hefty tax increases – to help implement Obamacare. Together, they give the appearance of a desperate Administration effort to avoid the kind of “train wreck” that Senator Max Baucus (D, Montana), a principal architect of Obamacare, recently said he fears. That’s also one reason why Republicans who want to kill Obamacare refuse to provide additional funding for the exchanges.

An HHS spokesperson responded to an inquiry about the “lobbying” complaints by saying that “HHS is committed to proper oversight and monitoring of appropriated funds, and to awardees’ compliance with all applicable regulations and statutes related to lobbying activities.” As to the shifting of the $453.8 million, the spokesman said that it was necessary “because Congress did not provide the resources requested” and it would help individuals “sign up for affordable health coverage by supporting . . . call centers that provide customer service, consumer education and outreach.”

The lobbying controversy is akin to conservative complaints about the 2009 “stimulus” legislation, in which HHS directed some $373 million to a “Communities Putting Prevention to Work” fund to states, counties and cities and then onto to health advocacy organizations described in a Wall Street Journal editorial as “liberal pressure groups lobbying for fast-food taxes.”

With those stimulus grants largely spent, the Administration has used Prevention Fund money – dispensing more than $290 million in fiscal 2012 and 2013 combined – for very similar “Community Transformation Grants.” As in the case of the earlier grants, HHS made the grants through the federal Centers for Disease Control and Prevention (CDC). Public documents, including CDC descriptions of grants’ goals as well as the reports that grantees must file, are honeycombed with references to seeking state and local policy changes, such as tax hikes on sugary beverages and tobacco and zoning restrictions on fast-food establishments.

Congressional investigators point to documents and federal websites, which detail the spending that critics call “illegal lobbying.” A few of the more than 100 examples cited by critics:

In Washington state, the Prevention Alliance, a coalition of health-focused groups, reported in notes of a June 22, 2012 meeting that the funding for its initial work came from a $3.3 million Obamacare grant to the state Department of Health. It listed a tax on sugar-sweetened beverages (SSB), “tobacco taxes,” and increasing “types of outdoor venues where tobacco use is prohibited” as among “the areas of greatest interest and potential for progress.”
The Sierra Health Foundation, in Sacramento, which received a $500,000 grant. in March 2013, described its plans to “seek local zoning changes to disallow fast food establishments within 1,000 feet of a school and to limit the number of fast food outlets,” along with restrictions on fast food advertising. A $3 million grant to New York City was used to “educate leaders and decision makers about, and promote the effective implementation of. . . a tax to substantially increase the price of beverages containing caloric sweetener.”
A Cook County, Ill. report says that part of a $16 million grant “educated policymakers on link between SSBs [sugar-sweetened beverages] and obesity, economic impact of an SSB tax, and importance of investing revenue into prevention.” More than $12 million in similar grants went to groups in King County, Wash. to push for changes in “zoning policies to locate fast-food retailers farther from . . . schools.” And Jefferson County, Ala., spent part of a $7 million federal grant promoting the passage of a tobacco excise tax by the state legislature.

Among those who have expressed concern about questionable and possibly illegal use of Obamacare Prevention Fund money to lobby – an ambiguous term that the Administration interprets narrowly and its critics broadly – are HHS Inspector General Daniel Levinson; Sen. Susan Collins (R, Maine); and Chairmen Darrell Issa (R, CA) of the House Oversight and Government Reform Committee and Fred Upton (R, MI) of the House Energy and Commerce Committee.

Inspector General Levinson, a respected and veteran independent investigator, was first appointed to his position overseeing the vast HHS bureaucracy by President George W. Bush. He was retained in that job by President Obama, who also named him to the Government Accountability and Transparency Board. Last June 29, Levinson sent CDC Director Thomas Frieden an “EARLY ALERT.”

It warned that reports posted by CDC grantees “contain numerous examples of activities that, on their face, may violate anti-lobbying provisions,” and that “some of the CDC information, as well as the non-CDC resource materials posted to the CDC web site, appear to authorize, or even encourage grantees to use grant funds for impermissible lobbying.” The “alert” said that the IG would continue to “evaluate more broadly” compliance with lobbying restrictions. A Levinson spokesman declined recently to elaborate.

Collins, a leading Senate moderate, cited copious evidence in a May 1, 2012 letter to Sebelius that CDC has provided “official guidance to grantees that appears to include an expectation that federal funds are to be used for strategies that result in changes to state and local policies and laws.”

While stressing strong support for “the wellness and prevention mission of the CDC,” Collins cited examples including a report to the agency by the Pennsylvania Department of Health, which received a $1.5 million CPPW anti-tobacco grant in 2010. Thanks to the federal money, the Health Department reported, “210 policy makers were contacted . . . 31 ordinances were passed . . . there were 26 community presentations made to local governments .. . and 16 additional ordinances were passed this quarter, for a cumulative total of 47.”

HHS and CDC say that not only have they heeded these complaints, but as HHS stressed in an April 1 letter to Upton, they have been committed all along to “proper oversight and management of appropriated funds, and to awardees’ compliance with all applicable regulations and statutes related to lobbying activities.”

Spending to influence state and local legislation, critics claim, violates a web of overlapping federal laws, beginning with the federal Anti-Lobbying Act of 1919, as amended in 2002, which says: “No part of the money appropriated by . . . Congress shall . . . be used directly or indirectly to pay for any personal service, . . . telephone, letter, printed or written matter, or other device, intended . . . to influence in any manner a member of Congress, a jurisdiction, or an official of any government, to favor, adopt, or oppose, by vote or otherwise, any legislation, law, ratification, policy, or appropriation.”

This language is clear, unambiguous, and much broader than the HHS regulations on lobbying. To be sure, these restrictions have long been interpreted narrowly by the executive branch, a bipartisan tradition that goes back at least to the administration of President George H.W. Bush. And the Justice Department has never enforced the law against anyone.

Still, the Sebelius interpretation of the Anti-Lobbying Act takes narrow interpretation to extremes, flying in the face of the statute’s very specific language. Sebelius testified on March 1, 2012 that the statute’s lobbying provisions don’t apply to “local lobbying” or lobbying by grantees, while acknowledging that a 2012 appropriation provision – which unlike the Anti-Lobbying Act provides no penalties for violators – barred such forms of lobbying.

HHS Assistant Secretary for Legislation Jim Esquea made a more detailed argument to the same effect in an April 1, 2013 letter to Rep. Upton, asserting that the statute prohibits “only large-scale, high-expenditure, ‘grass roots’ lobbying campaigns conducted by federal agencies that expressly encourage members of the public to contact their elected representatives with respect to legislative matters.” But Esquea relied on strained interpretations of obsolete precedents predating major amendments that, in 2002, explicitly broadened the Anti-Lobbying Act to cover for the first time lobbying of state and local officials.

CDC guidelines permit the state and city agencies that it funds “to work directly on policy-related matters across their equivalent branches of state or local government.” That sounds reasonable enough. But to critics it sounds like the guidelines would allow, if not encourage, a city health department to spend federal money on lobbying (in the fullest sense of that word) state and local lawmakers to raise taxes on tobacco and sugary beverages.

Some grants seem to fit this interpretation. A $7.6 million CPPW grant to the County of St. Louis to fund an anti-smoking “Community Action Plan” for local activists. Under that plan, “the Leadership Team will meet with the Governor and state legislators to advocate for the repeal of [the state law] that prohibits municipalities from levying their own cigarette excise taxes.” In quarterly reports to CDC for late 2010 through mid-2012 on how it had spent the federal grant, St. Louis County said: “Leadership Team members . . . met with officials from two municipalities about adopting a comprehensive smoke-free ordinance. . . . Coalition members met with two County Council members and the County Executive about strengthening the County’s new smoke-free ordinance. . .. Several people, including restaurant owners, testified at three consecutive County Council meetings in support of removing exemptions from the County’s smoke-free ordinance.”

Finally, St. Louis County used almost $2 million of its federal grant to pay the public relations-lobbying firm Fleischman Hillard for a media campaign to strengthen an anti-smoking ordinance and push related agendas.

Many grantees and the federal bureaucrats who finance them maintain that they can legally engage in efforts to “educate” both the public and officials about, say, the public health benefits of taxing tobacco and sugary beverages so as to reduce consumption. Chairman Upton, on the other hand, rejected in an August 2012 letter what he called “the improper distinction made by CDC between lobbying and ‘education campaigns.’

Enlisting other levels of government to do things [the federal government] can’t do openly on its own is the latest example of propaganda and politicizing efforts that only pretend to represent policy reform,” said Tom Miller, an expert in health policy and law at the American Enterprise Institute.

Other conservative health care policy advocates, such as Dr. Eric Novack, an orthopedic surgeon in Phoenix, complain that using federal dollars to lobby for more taxes and other liberal causes at the state and local levels is an abuse of power that skews the natural balance of state and local political forces. “With the hundreds of millions of state and federal dollars annually flowing their way, [health care advocates] are engaging in the lobbying equivalent of ‘shock and awe’ to get ever more money for themselves and to thwart efforts at real reform”, said Dr. Novack.

Critics have also suggested that Sebelius (and Obama) “lack the legal authority,” as Rep. Issa put it in his April 19 letter to Sebelius, to divert $453.8 million in Prevention Fund dollars to help pay for the establishment and operation of health insurance exchanges. Argues Grace-Marie Turner, president of the Galen Institute, an Alexandria, Virginia-based health-care think tank:

“The Obama administration is being very creative in devising programs it says fit within the definitions of ‘prevention’ and ‘public health.’ The reality is that this is a slush fund. The administration is using taxpayer dollars to further its political goals, without any congressional input. That is an open invitation to misuse and abuse of taxpayer dollars.”

But short of an unlikely bipartisan agreement, there’s not much that anyone in Congress can do about such complaints.

Strikingly, the most passionate denunciations of the $453.8 million diversion have come from a senior Democrat, Sen. Tom Harkin, self-described author of the Prevention and Public Health title of the Affordable Care Act. Harkin succeeded the late Ted Kennedy, (D, MA) as Chairman of the Senate Health, Education, Labor and Pensions Committee and has vowed to carry on Kennedy’s legacy of seeking universal access to health care and, especially, full funding of prevention programs.

“It is ill-advised and short-sighted to raid the Prevention Fund, which is making absolutely critical investments in preventing disease, saving lives, and keeping women and their families healthy,” Harkin said in his May 7 floor speech. “When it comes to Prevention, this Administration just doesn’t get it. . . . To slash money from this fund . . . is to cannibalize the Affordable Care Act in ways that will cost both money and lives. It is a violation of both the letter and spirit of this landmark law.”

In other words, the Democratic Chairman of the Health Committee is calling the Democratic President’s “raid” on the Prevention Fund illegal. But an HHS spokesperson counters that “this short term investment will result in a long-term public health gain by helping millions of people get access to care and improve our nation’s health.” Other officials stress that with an October 1 Obamacare deadline to start enrolling millions of individuals online, finding the money to create and implement the insurance exchanges is a major challenge to the success of Obamacare.

And money for setting up the exchanges is very, very short, despite an overall Obamacare price tag of trillions over coming years. One reason is that the Administration underestimated the cost, in part because contrary to its expectation, only 17 states have chosen to operate their own insurance exchanges. Another reason is Congress’s refusal to appropriate more money for such administrative expenses.

Meanwhile, it may not be easy to convince young or healthy people without employer-based insurance – especially men, and especially with incomes too high to qualify for Obamacare subsidies – that it would be a rational economic choice to buy a government-approved insurance policy costing (the Congressional Budget Office estimated in 2010) over $4,500 a year for an individual. By contrast, the Obamacare fine will be far smaller for some individuals.

The alternative choice of paying a relatively inexpensive Obamacare penalty for refusing to buy insurance may seem more attractive to many, especially after the Supreme Court stressed last June that such a choice carries no stigma of law-breaking. The Affordable Care Act set the penalty (which varies depending on income and the year) at only a fraction of what the insurance would cost people who don’t qualify for subsidies. At the same time, it guarantees a healthy person who chooses the penalty rather than the insurance the right to reverse course and buy the insurance at no extra cost not too long after he gets sick or injured.

So, as the Administration sets out to recruit enough young, healthy people to keep premiums from soaring, it may need every dollar it can find for advertising and outreach.

What some critics call a “slush fund,” may well turn out to be Obamacare’s own insurance policy.

The post Obamacare’s Slush Fund Fuels A Broader Lobbying Controversy appeared first on Stuart Taylor, Jr..

For starters, it’s big enough for the justices to schedule six hours of arguments — more time than given to any case since 1966. After all, the Affordable Care Act is arguably the most consequential domestic legislation since the creation of Medicare in 1965.

It’s also big enough to attract more briefs than any other case in history. At least 170, including more than 120 “friend-of-the-court” or amicus briefs, have been filed, many of which are joined by 10, 20 or more groups of every imaginable description.

And, finally, it’s big enough to cause the justices to postpone until October half of the 12 cases that they would ordinarily hear in April in order to clear time to get started on the health care opinions that they are expected to issue by the late June, or possibly, early July.

What’s it all about?

The immediate issues, in the order the court will hear them, begin with the question of whether the so-called “individual mandate” — which requires that almost all Americans without coverage buy individual health insurance policies or pay fines — is ripe for adjudication now. Or must the case be deferred until 2015 because of the 1867 Anti-Injunction Act, which bars federal courts from ruling on the constitutionality of tax laws before payments are due?

After that come the arguments about what many consider the central issue: whether the mandate, which is unprecedented, should be voided because it represents an unconstitutional exercise of Congress’ powers to regulate commerce and to levy taxes.

Next is what becomes of the law’s hundreds of other provisions, covering 2,700 pages, if the mandate is unconstitutional? Are some or all of them “severable,” meaning that Congress would have wanted them to stand even if the mandate falls? For example, what about the provisions establishing tax credits to help small businesses and individuals buy health insurance and taxing large employers that do not provide full-time employees government-approved coverage?

Apart from those issues, does the law’s expansion of Medicaid violate the sovereignty of the states by effectively requiring them to spend more of their own money or forfeit all of the federal Medicaid money they now receive?

What’s the likely outcome?

Nobody knows. It’s clear that the court’s four more liberal members, like almost all other liberal legal experts, will find the law constitutional in all respects. It’s also clear that conservative Justice Clarence Thomas will vote to strike down much or all of the law. It’s less clear what swing-voting Justice Anthony Kennedy and conservative Chief Justice John Roberts as well as Justices Antonin Scalia and Samuel Alito will do.

Kennedy, Roberts, Alito, and (especially) Scalia — whom the government’s brief quotes five times — have all joined past decisions construing federal regulatory power very broadly. Two respected conservative federal appeals court judges, Laurence Silberman and Geoffrey Sutton, who is one of Scalia’s favorite law clerks, have upheld the law.

What are the major arguments for and against the individual mandate?
Defenders say that the broad constitutional power of Congress to regulate interstate commerce, and the even broader power to “lay and collect taxes,” both provide ample authority for requiring that people buy insurance as part of a comprehensive scheme to end “discriminatory insurance practices that have excluded millions of people from coverage based on medical history,” in the words of a brief by Solicitor General Donald Verrilli.

The same brief also asserts that uninsured people consume $43 billion a year worth of emergency-room and other health care for which they do not pay, costs that are shifted to insurers and that raise insured families’ average premiums by more than $1,000 a year. Critics of the law dispute these numbers.

The 26 states challenging the law (along with a business group and four individuals) say, in the words of a brief by Paul Clement, who was solicitor general under President George W. Bush: “The individual mandate rests on a claim of federal power that is both unprecedented and unbounded: the power to compel individuals to engage in commerce in order more effectively to regulate commerce. This asserted power does not exist. … It is a revolution in the relationship between the central government and the governed.”

Clement also stresses that President Barack Obama and his allies in Congress insisted during the debate before the measure became law that the financial penalty for failing to comply with the individual mandate is not a tax. They should not be allowed, he argues, to “enact legislation that would not have passed had it been labeled a tax and then turn around and defend it as a valid exercise of the tax power.”

The Anti-Injunction Act?

This reconstruction-era statute bars courts from considering the constitutionality of tax laws until payments are due. It will apply here if the court deems the individual mandate’s penalty provision a “tax.”

Because the mandate is not scheduled to take effect until 2014 and the first penalties would not be due until 2015, the federal courts would not yet have jurisdiction to consider the constitutionality of the penalties or the mandate. In other words, consideration of the case would be postponed until 2015, and, therefore, such a decision would convert the biggest case in decades into the biggest anticlimax in Supreme Court history.

Both sides say that the Anti-Injunction Act does not apply. But the court appointed a lawyer as “friend of the court” to argue that it does, as one federal appeals court held. This appointment signaled the court’s care to observe arguable limits on its jurisdiction even when the parties agree that it has jurisdiction.

What are the major arguments on severability?

The government says that if the court strikes down the mandate, it should defer until future cases any ruling on the severability of most other provisions. But, if it does rule on severability, the government maintains that only two other provisions should go down with the mandate. Those are the “guaranteed-issue” and “community-rating” provisions, which bar insurers from denying coverage or charging higher premiums because of medical history. Without the individual mandate, the government says, those provisions would send premiums soaring by creating incentives for healthy people to defer buying insurance until they need health care.

The 26 states argue that the mandate was deemed by Congress to be “necessary to make the other provisions work as intended,” and that the court should strike down the whole law.

The court appointed another friend-of-the-court lawyer to write a brief arguing that a decision striking down the mandate should leave the rest of the law — including guaranteed issue and community rating — intact.

What are the major arguments on Medicaid?

The government asserts that “it is well settled that Congress’s spending power includes the power to fix the terms on which it will disburse funds to the states,” that Congress has repeatedly expanded the state-federal Medicaid program, and that this new expansion will not “impose significantly onerous burdens on the states.”

The 26 states counter that the Medicaid expansion unconstitutionally coerces them because it “threatens States with the loss of every penny of federal funding under the single largest grant-in-aid program in existence — literally billions of dollars each year — if they do not capitulate to Congress’ steep new demands.”

The post The Health Law And The Supreme Court: A Primer For The Upcoming Oral Arguments appeared first on Stuart Taylor, Jr..

Can Congress and the president use an unprecedented and potentially limitless expansion of the power to regulate interstate commerce to avoid the political hazards of calling a tax a tax? Or might some justices effectively impose a constitutional truth-in-labeling requirement?

In order to explore these questions, it’s important to first review the current tally of wins and losses. So far, one federal appeals court in June upheld the mandate by 2-1. A second struck it down in August by 2-1. And a third on Sept. 8 threw out two other challenges on jurisdictional grounds. Federal district courts have also issued conflicting rulings.

With more cases in the pipeline, it’s certain that the Supreme Court will step in to decide the mandate’s fate. The final decision will probably come down next June, if the Obama administration files its petition for review promptly this autumn, but certainly by 2013.

Most legal experts have long predicted that the Supreme Court will uphold it. Although the confidence level has dipped as lower-court judges have gone both ways, Walter Dellinger, former acting solicitor general under President Clinton, predicts a 7-2 vote to uphold. Tom Goldstein, another leading Supreme Court advocate, who represents AARP as a friend of the court supporting the law, predicts 7-2 or 6-3, adding that “the opponents of the law have done a tremendous job at articulating their theory, and they’ve gotten more traction than I imagined they would,” but he doesn’t “see a realistic chance of them winning.”

But David Rivkin, one of the lead lawyers challenging the health care law, confidently predicts a 5-4 vote to strike down the individual mandate.

Based on the current lay of the land, I’d put the chances at about 25 percent to 33 percent that the mandate is overturned. The court seems even less likely to sweep away the rest of the 975-page law, according to legal experts following the case closely.

For starters, the court’s four Democratic appointees seem almost certain to vote to uphold the law. And Justice Clarence Thomas seems almost certain to vote to strike it down. Still, it’s harder to call the other four Republican appointees, Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Samuel Alito. Each side in the health care litigation has cited one or more opinions written or signed by each of these four justices. But even on the questionable assumption that each is a good bet to vote with Thomas, the odds seem against all four doing so. (For example: 2/3 x 2/3 x 2/3 x 2/3 = 16/81.)

Examining The Arguments Against The Mandate

This is not to deny that the health law’s challengers have very respectable arguments against the mandate, which would in 2014 require millions of healthy people either to buy health insurance policies or to pay financial penalties.

First, the mandate is without precedent. Congress has never before passed a law requiring Americans to buy a commercial product that they don’t want in the name of regulating interstate commerce. And the novelty of a far-reaching new requirement may (or may not) count against its constitutionality, the court has said in prior cases.

“Whether such a requirement would be constitutional under the Commerce Clause is perhaps the most challenging question posed by such a proposal, as it is a novel issue whether Congress may use this clause to require an individual to purchase a good or service,” the Congressional Research Service reported in 2009, while the health care bill was pending.

Second, although the justices have construed very broadly Congress’s power to regulate commercial activity, they have never held that Congress may regulate even inactivity, by requiring people who want to be left alone to engage in commerce. As such, the mandate encroaches on individual liberty and autonomy in a way that is sure to trouble those justices — especially Kennedy, who is often the pivotal vote — who see judicially imposed limitations on the commerce power as vital protections of liberty.

Third, although only two Supreme Court decisions (in 1995 and 2000) since 1937 have struck down acts of Congress as exceeding the commerce power, they stand for the proposition that that power must be restrained by some meaningful, judicially enforceable limiting principle. Opponents of the individual mandate have made a strong case that a decision upholding it would effectively give Congress unlimited power to require people to buy vegetables, cars and anything else that Congress might choose to promote.

“If Congress may compel individuals to purchase health insurance from a private company,” Chief Judge Joel Dubina, of the 11th Circuit Court of Appeals, wrote in an August 12 decision striking down the individual mandate but upholding the rest of the law, “it may similarly compel the purchase of other products from private industry, regardless of the ‘unique conditions’ the government cites as warrant for Congress’s regulation here.”

Fourth, there is that truth-in-labeling concern. While never expounded as a formal doctrine, this point stems from the distinction between Congress’ broad power to regulate interstate commerce and its even broader power to “lay and collect taxes” — a theme running through the current litigation.

The court has long ruled that the taxing power is virtually unlimited, on the assumption that the political process is an adequate safeguard against excessive or abusive taxes — at least, if the taxes are undisguised. And this is an important point to remember as the legal action continues to unfold.

Tax Or Penalty?

One of the ways the president and his allies wanted to offset the costs health insurers would bear under the health law’s guaranteed-issue requirement is to require millions of Americans to spend billions of dollars on health insurance, even though many of them might otherwise choose not to buy it.

The most constitutionally unassailable way to do this would have been to raise the taxes of these Americans while offering tax credits to those who bought expensive, government-approved health insurance.

But as U.S. District Judge Roger Vinson, of Pensacola, Fla., asserted in one of the early rulings against the law, “Not only are taxes always unpopular, but to do so at that time would have arguably violated pledges by politicians … to not raise taxes, which could have made it that much more difficult to secure the necessary votes for passage.”

So Congress devised the individual mandate to extract the money from taxpayers while strenuously asserting that the penalty for noncompliance was not a tax. Since the health law’s passage, though, the Obama administration has argued that this penalty is a tax, and thus should be upheld as an exercise of the taxing power, as well as of the power to regulate commerce.

But even most of the judges who have upheld the mandate as a regulation of interstate commerce — as well as those who have struck the mandate down — have rejected the administration’s position that it is also a valid exercise of the taxing power.

Different Supreme Court precedents appear to point in different directions on whether the commerce power is broad enough to justify the individual mandate. Here’s why I am laying odds that they will uphold it:

–The court’s most recent precedents suggest (ambiguously, to be sure) that the only judicially enforceable limit on the commerce power is that Congress cannot use it to regulate non-economic, personal, local activities.

–The health care and health insurance markets massively affect interstate commerce. In the words of an opinion upholding the mandate by Bush-appointed Judge Jeffrey Sutton, “No one is inactive when deciding how to pay for health care, as self-insurance and private insurance are two forms of action for addressing the same risk. Each requires affirmative choices; one is no less active than the other; and both affect commerce.”

And for all the objections to regulating “inactivity,” the individual mandate is no more intrusive on personal liberty and autonomy than, say, the Social Security and Medicare taxes, which serve similar purposes.

This analogy to the Social Security and Medicare laws, which included clearly labeled taxes, only highlights the truth-in-labeling objection to the individual mandate, which is arguably a tax in disguise. But truth does not come easy to politicians. And in this case, the justices may turn to an important principle: When the constitutional arguments for and against striking down a major act of Congress seem almost equally strong, say advocates of judicial restraint, the court should defer to the people’s elected representatives — no matter how unpopular they are with the people.

“Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation,” as Judge Sutton concluded, “allowing the people’s political representatives, rather than their judges, to have the primary say over its utility.”

The post Analysis: Handicapping Health Care Lawsuits, And The Truth-In-Labeling Factor appeared first on Stuart Taylor, Jr..

Listen to audio of the interview. 

JACKIE JUDD: Good day, this is Jackie Judd for Kaiser Health News. A legal blow today to the new health care reform law. Federal Judge Roger Vinson, in Florida, declared the entire law void because its core – the mandate that almost all Americans obtain health insurance – violates the Commerce Clause [of the U.S. Constitution]. The suit was brought by some 26 states. Legal analyst Stuart Taylor, a contributing editor for Newsweek and the National Journal, is with us. Thank you, Stuart, for joining us. Walk us through the judge’s reasoning.

STUART TAYLOR: Nice to be with you. The gist of it was that Congress has no power to require individuals to purchase health insurance. Because the only basis for the power that the federal government has claimed is the power of Congress to regulate interstate commerce. And the judge held that that power – although it’s very broad, and the Supreme Court may decide it’s broad enough to justify this law – Judge Roger Vinson said it’s not broad enough to require someone to purchase a commercial product. That’s the gist of it.

JACKIE JUDD: And then he went a step beyond that, saying that the individual mandate is so inextricably linked to the rest of the bill that one couldn’t be separated from the other and therefore the entire bill would be void?

STUART TAYLOR: Yes, 450-odd provisions, all of them , in his decision would be blown away and Congress would have to start over from scratch. It’s worth noting, by the way, that in that regard, he contradicts the other federal judge who has struck down the health care law, the individual mandate. That was Judge Henry Hudson of Richmond. He held that most of the act could stand and then just carve out the individual mandate.

Judge Vinson, on the other hand, while agreeing that the individual mandate had to be struck down, said that it was so central to the entire operation of the law that it wasn’t at all clear which of the other provisions Congress would have adopted if it had known that it couldn’t do the individual mandate. So he just made a clean sweep of it.

JACKIE JUDD: And we should say that Judge Vinson today said that the law can remain in place. So in terms of a practical impact, little to none?

STUART TAYLOR: Well, probably, because the government will no doubt immediate seek a stay. Although he didn’t issue an order saying “you have to stop doing everything,” that would be the logical implication of his decision. But to the extent that the government might feel some obligation to comply with the law as he’s declared it, it will immediately go up to a higher court and say “please put everything on hold” and the higher court would do so.

JACKIE JUDD: And Stuart, you mentioned a moment ago, of course there was another decision – one based in  Richmond, another one we had earlier based in Michigan, and there doesn’t seem to be yet a single emerging consensus, does there? 

STUART TAYLOR: The consensus is the Democratic appointed judges uphold the law and the Republican appointed judges strike it down – so far.  We have two Clinton appointees upholding it: the one you mentioned plus Judge Norman Moon of Lynchburg, Va., and then we have two Republican appointees, Judge Vinson today, and Judge Henry Hudson of Richmond a few weeks ago saying it’s unconstitutional.  Now  I don’t claim that pattern is going to uphold all the way up to the Supreme Court and that the law’s going to get struck down 5-4 because there are more Republicans, I actually would probably bet – not a lot – but bet on it being upheld  in court.  But so far, it’s clear that there’s a ideological cleavage that’s the best way of reconciling all of these decisions.

JACKIE JUDD: And yet, the judge today, who is a Republican appointee, to my reading, he seemed to be going to great lengths – both at the beginning of the decision and at the end –  to say that this is a legal decision, it is not a political decision.  

STUART TAYLOR: He does, he makes a big point of that, and no doubt sincerely.  I think the reason he does, is that more and more, and because of the logic I just offered about Republican and Democratic judges, more and more the decisions of the judiciary are treated as political decisions by a lot of people in the body politic.  And I don’t claim that this is a political decision, I do think the ideologies of the judges make a big difference.  He just wants to say, “I’m not being political. I’m applying the principles of our Commerce Clause, jurisprudence.” And he goes to great length, he goes back to the beginning, the Framers and James Madison, etc., all the way up to the most recent Supreme Court cases and makes a plausible argument that what I’m doing here is what those cases point to.  He doesn’t claim those cases require it, because there isn’t any case that’s directly on point. 

JACKIE JUDD: A final question, Stuart – it’s one that I asked you the last time we spoke after another court ruling like this one.  What timetable do you see for this law to reach the Supreme Court?

STUART TAYLOR: I would think probably by next year at some time, with probably a decision in June 2012.  But quite possibly, various factors could bump it over until 2013.  The most obvious factor would be if the court waits to have conflicting decisions come up or if no federal appeals court strikes it down – the Supreme Court doesn’t pay much attention to what federal district judges do.  If a federal appeals court confirms what Judge Vinson did today, for example, that’s when you start thinking the Supreme Court is going to want to take this, because it’s obviously so huge.  That could happen fast, and we could see a Supreme Court decision in June 2012, or probably, if it’s slower, by June 2013. 

JACKIE JUDD: And if it’s the former, it puts it right in the middle of the presidential campaign.

STUART TAYLOR: It sure does, and it would be obviously a thunderclap in the campaign and both sides would make hay out of it, as they’ve already made hay out of some of these earlier decisions.  But I don’t think anybody on the Supreme Court would time their approach to the matter so as to affect the campaign.  But that’s sort of the logic if you look at the usual timetable’s that these things operate under – the deadlines, the filing, how many days you have to write a brief – and you just sort of add it all up, you could easily get it before the court a year from now and that would mean it would be decided by June 2012. 

The post Analysis: What Does Judge Vinson’s Health Law Decision Mean? appeared first on Stuart Taylor, Jr..

Republican critics of the law were saying that “several” (that is, two) judges had found unconstitutional the requirement that Americans obtain insurance or pay penalties. Meanwhile, President Obama was saying: “We’ve got 12 federal courts who have dismissed similar lawsuits. So the majority of courts who looked at this issue so far are absolutely convinced that the health care bill is [constitutional].” Twelve! Sounds convincing. But Obama neglected to note that 10 of those lawsuits were mostly beside the point because they were not aimed at the individual mandate or were dismissed on grounds that did not uphold its constitutionality.

If counting judicial noses at this early stage were a reliable guide to the likely fate of the health care law on appeal, the score would stand at two Clinton-appointed judges, George Steeh and Norman Moon, upholding the individual mandate; Bush-appointed Henry Hudson striking it down Dec. 13, and Reagan-appointed Roger Vinson sounding during an oral argument on Dec. 16 like he would do the same. The four sit in Detroit; Lynchburg and Richmond, Va., and Tallahassee, Fla., respectively.

But district judges’ rulings tell us little or nothing about what the federal appeals courts and the Supreme Court will ultimately do with these cases. Below is an overview of the litigation, what it’s about, and how it’s likely to unfold.

How many health care lawsuits are there? More than 20 have been filed around the country, some going to the heart of the law and some peripheral.

Why is one provision of the massive law getting so much attention? First, it’s widely seen as a lynchpin of the Democrats’ goal — that just about every American have affordable insurance regardless of their health. Without the mandate, many people might go without insurance – thus driving up premiums for everyone else – because they would know that whenever they need coverage they could easily get it. Second, as a constitutional matter, the mandate is the law’s most vulnerable major provision because it is the first ever to require millions of Americans, in the name of regulating interstate commerce, to buy a commercial product that they  may not want to pay for. Since the New Deal, the Supreme Court has allowed Congress extremely broad powers to regulate commerce. But the Court has never said that that power is unlimited and has left room for questions such as one that Vinson asked: Could Congress “mandate that everybody has to buy a certain amount of broccoli?”

But if it’s necessary to pay for near universal coverage, it must be constitutional, right? The Obama administration and many others essentially say that. Critics say that market-based incentives would work better. One irony is that Congress could without fear of constitutional invalidation have created the kind of single-payer system that conservatives call socialism. Hudson stressed that as a matter of law, good policy is not necessarily constitutional, nor bad policy unconstitutional. But it’s pretty clear that he and Vinson think this law is bad both ways. And that Steeh and Moon think it’s good both ways.

Why do people keep saying the Supreme Court will decide the fate of the law in June 2012 or June 2013? June is when the Court issues most of its big decisions, with some notable exceptions, whether they are argued in April or the previous October. That’s because big decisions tend to generate long opinions, dissents, and concurrences, which circulate back and forth as the justices trade debating points in footnotes. Decisions are almost never issued in July, August or September because the justices cherish their three-month summer vacations.

What has to happen before the Supreme Court gets the case? While lots of cases are pending around the country, the four mentioned above seem to be on the fastest tracks. The Detroit and Lynchburg cases are already before or headed for the U.S. Courts of Appeals for the 6th and 4th Circuits, respectively. Hudson’s decision will also go to the 4th Circuit. Vinson’s will go to the 11th Circuit no matter how he rules. And it often takes 14 months to two years for a case to move from the final ruling of a district judge such as Hudson to any decision by the Supreme Court.

Why does it take so long? Judges and lawyers move very slowly. Allow four to five months for filing of initial briefs and responses in the appeals court. Three to eight more months for the three-judge panel to rule. Another four to six months for the losing side to seek and obtain (in a small percentage of cases) a Supreme Court decision to review the case. More than three additional months of briefing before the justices hear arguments. But this timetable could slip by a year if the losing party in a regional appeals court panel obtains a rehearing before the full appellate court, or if the justices choose to await conflicting appeals court rulings rather than taking up the first case that comes along.

What’s likely to happen? Lawyers in the Tallahassee case appear to have chosen Florida for a reason: The appeal of Vinson’s decision will go to the 11-judge U.S. Court of Appeals for the Eleventh Circuit, one of the most conservative in the country. Chances are good that a typical 11th Circuit panel will move fast, by judicial standards, to strike down the individual mandate. Other cases may move fast, too. That would tee the issue up for a Supreme Court argument by the spring of 2012 and a ruling likely to fall between June 25 and 28 of that year.

Who will win? The four more liberal justices will vote to uphold the law. Can they get to five? All eyes will be on their best bets: swing-voting Anthony Kennedy and Chief Justice John Roberts.

The post Analysis: The Long Road To A Supreme Court Decision On Health Law’s Mandate appeared first on Stuart Taylor, Jr..

 Lawyer and journalist Stuart Taylor discusses today’s development in health care reform. U.S. District Court Judge Henry Hudson in Virginia struck down a key part of the new health law, saying that the mandate on most Americans to buy health coverage is unconstitutional.

Watch the video  or listen to the audio.

Transcript:

JACKIE JUDD: Good day. This is Health on the Hill. I’m Jackie Judd. The lynch pin of the health care overhaul law has been declared unconstitutional. Federal Judge Henry Hudson in Virginia ruled that Congress overstepped its authority by requiring that virtually all Americans have health insurance. Here to discuss the ruling, and its implications, is Stuart Taylor, contributing editor for Newsweek and The National Journal, welcome so much.

STUART TAYLOR: Nice to be with you, Jackie.

JACKIE JUDD: The judge ruled in the case brought by the state of Virginia, on what did he base his ruling?

STUART TAYLOR: He said that Congress had no power and the President, and no power in the U.S. Constitution to require individuals who don’t want to buy health insurance to either buy it or pay a penalty for not buying it. And the idea is that Congress does not have unlimited power.

Now, a lot of us have gotten used to the idea that their power is virtually unlimited except for specific provisions of the Bill of Rights, but the Supreme Court has said that they have lots of power but it’s not unlimited. He said penalizing somebody, taxing somebody, call it what you will, for inactivity, just for being born and raised in the United States and deciding not to buy health insurance is beyond the power of Congress and the federal government.

JACKIE JUDD: This is known as the individual mandate, which doesn’t kick in until 2014. What did the judge say about the rest of the bill?

STUART TAYLOR: He said that he would not strike down the rest of the bill except for provisions that were really closely related…

 Lawyer and journalist Stuart Taylor discusses today’s development in health care reform. U.S. District Court Judge Henry Hudson in Virginia struck down a key part of the new health law, saying that the mandate on most Americans to buy health coverage is unconstitutional.

Watch the video  or listen to the audio.

Transcript:

JACKIE JUDD: Good day. This is Health on the Hill. I’m Jackie Judd. The lynch pin of the health care overhaul law has been declared unconstitutional. Federal Judge Henry Hudson in Virginia ruled that Congress overstepped its authority by requiring that virtually all Americans have health insurance. Here to discuss the ruling, and its implications, is Stuart Taylor, contributing editor for Newsweek and The National Journal, welcome so much.

STUART TAYLOR: Nice to be with you, Jackie.

JACKIE JUDD: The judge ruled in the case brought by the state of Virginia, on what did he base his ruling?

STUART TAYLOR: He said that Congress had no power and the President, and no power in the U.S. Constitution to require individuals who don’t want to buy health insurance to either buy it or pay a penalty for not buying it. And the idea is that Congress does not have unlimited power.

Now, a lot of us have gotten used to the idea that their power is virtually unlimited except for specific provisions of the Bill of Rights, but the Supreme Court has said that they have lots of power but it’s not unlimited. He said penalizing somebody, taxing somebody, call it what you will, for inactivity, just for being born and raised in the United States and deciding not to buy health insurance is beyond the power of Congress and the federal government.

JACKIE JUDD: This is known as the individual mandate, which doesn’t kick in until 2014. What did the judge say about the rest of the bill?

STUART TAYLOR: He said that he would not strike down the rest of the bill except for provisions that were really closely related to this individual mandate, and I’m sure there is a lot of room for argument about which of the 400+ provisions in the bill fit that description.

So, he didn’t give any detail, but this is, as you said, it’s the heart of the bill in the sense that the whole idea of requiring that everybody have insurance including sick people and without any preexisting conditions or medical history getting in the way, somebody has to pay for all that.

This individual mandate is the way it would get paid for to a significant sense by basically making young and healthy people pay for people who are going to require more medical services through the insurance.

JACKIE JUDD: But as a practical matter in the short term, the ruling today doesn’t have much impact on the law, in a legal sense and an implementation sense, but for the White House it must be creating political headaches today.

STUART TAYLOR: Yes because this individual mandate wouldn’t take effect until 2014 – no immediate effect. He didn’t say it has to stop right now. There is nothing to stop. Politically, it’s a big headache more than it is legally. The Supreme Court is not going to care what Judge Henry Hudson thinks.

Politically, though, this puts a lot of wind in the sails of Republicans who are clamoring to repeal the law, of people in the states who are trying to get the states to resist implementation of the law, and in public opinion. Liberal constitutional scholars and some conservatives have been saying ‘This is a ridiculous lawsuit. Of course, it’s constitutional.’ When a federal judge says ‘I don’t think so’ and there is another federal judge coming down the pike who is likely to say the same thing, then it becomes more of a serious issue to people and less of a frivolous lawsuit.

JACKIE JUDD: And the other federal judge you referred to is, are you talking about the judge who will be hearing the case in Florida later this week, or at least the final day of hearings?

STUART TAYLOR: Yeah, his name is Roger Vinson. He will hear, and he will probably rule and the betting is that he will rule the same way Judge Hudson did. The issues are almost the same and that he will strike it down, too. These are Republican appointed judges. [Meanwhile], two Clinton-appointed judges in Detroit and also in Virginia, Lynchburg, Virginia, have upheld the law in similar cases, so the appellate courts will have something to resolve.

JACKIE JUDD: And it does seem like there is this inevitable march towards the Supreme Court. What kind of timeline do you think we would see it there?

STUART TAYLOR: It could be there in time for June 2012. It will be there for a long time once it arrives, you know, if they decide to hear it in October you won’t see a decision until June. No matter when they decide to hear it, you won’t see a decision.I think June 2012, maybe June 2013, the only way it would not be resolved by the Supreme Court is if no federal appeals court strikes it down. If when all these decisions and others that are coming are appealed, all the appeals courts say ‘no, it’s valid,’ then the Supreme Court might never feel it needs to look at it.

JACKIE JUDD: If it does get to the Supreme Court, what is the precedent? Is there any that they would be looking at?

STUART TAYLOR: There are lots of precedents that are relevant and that there’s no precedent to give you the clear answer. Because there’s never been a law in history, at least not any that a court has come to grips with, in which Congress has – under the power to regulate interstate commerce – purported to regulate inactivity, not buying insurance. And therefore you don’t have any precedents right on the nose. Each side has some precedents that by analogy and by extension support its argument, but it’s not a slam dunk for either side as a matter of precedent.

JACKIE JUDD: Okay, I have a feeling we will have you back on this issue in the coming years.

STUART TAYLOR: Thanks very much.

JACKIE JUDD: Thank you so much. 

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Judge Roger Vinson of the federal district court in Pensacola, Fla., suggested during a two-hour hearing on Sept. 14 that he was unlikely to dismiss a major challenge to the law by officials of 20 states, almost all of them Republican, plus three other plaintiffs. The plaintiffs object to provisions including the new law’s "individual mandate," an unprecedented requirement that people not covered by employer-based plans must buy comprehensive health insurance or face monetary penalties. It is to take effect in 2014.

The lawsuits-more than 15 so far-argue that Congress has no such power. Last month, federal district Judge Henry Hudson, of Richmond, Va., rejected a Justice Department motion to dismiss a similar suit by Virginia’s attorney general. But some leading legal experts, especially defenders of the new law, confidently predict that if any federal appeals court strikes it down, the Supreme Court will step in to uphold it, with some predicting a margin as lopsided as 8 to 1.

Critics of the law’s constitutionality scoff at such predictions. They’re confident that they’ll get at least the four conservative justices’ votes and that they have a good shot at swing-voting Justice Anthony Kennedy. Nobody seems to doubt that the four more liberal justices will support the new law. They appear to see Congress’s power to regulate interstate commerce as virtually unlimited, except by the Bill of Rights and other specific constitutional amendments.

However the case turns out, any ruling by the justices on the constitutionality of the health-care law would be the most important pronouncement on the relative powers of the federal and state governments in many decades.

The most fundamental question is whether Congress’s undoubtedly broad power to regulate activities affecting interstate commerce is so sweeping as to empower the government to require people who are engaged in no relevant activity at all other than living in the United States to buy health insurance. (When the Justice Department lawyer defending the new law sought to characterize a decision not to buy health insurance as commercial "activity," Judge Vinson interjected, "You’re trying to turn the word upside down and say activity is really equivalent to inactivity.")

The lawsuits also challenge as an invasion of state sovereignty the new law’s provisions requiring states, already strapped for cash, to spend billions of dollars expanding their Medicaid programs unless they withdraw entirely, a step widely seen as unthinkable.

Defenders of the law predict that no more than one or two of the most conservative justices would strike down the challenged provisions, which the government says are critical to effective federal regulation of a health care system that has a massive impact on interstate commerce. Walter Dellinger, a leading scholar and the acting solicitor general under President Clinton, foresees an 8-1 vote, with only arch-conservative Justice Clarence Thomas voting to strike down the new law. Tom Goldstein, another leading Supreme Court litigator, foresees a vote of at least 7-2.

"They’re just parroting the party line," retorts David Rivkin, a Washington lawyer who argued the case last week on behalf of the 20 states challenging the law. He says that upholding it would obliterate all limits on the commerce power, a step that Justice Kennedy and his four more conservative colleagues have repeatedly eschewed. Such a step would cross an important line and make America less free, Rivkin and his allies stress, by empowering Congress to require even the purchase of health-club memberships or, say, cars to stimulate the economy.

At the same time, leading centrist-to-conservative legal experts, including UCLA Law School’s Eugene Volokh, doubt that the justices would or should strike down such a hugely important enactment with so vast an impact on interstate commerce. Others stress that Congress’s sweeping authority to tax and spend for the general welfare-on which the somewhat analogous Social Security and Medicare taxes are based-provides ample authority for the penalty tax imposed by the new law on people who refuse to buy health insurance.

The justices have not struck down a major piece of legislation, let alone a president’s signature initiative, as beyond Congress’s power to regulate commerce in some 75 years.

Still, much may depend on where things stand when the issue reaches the justices. How popular or unpopular will the president’s new law be then? How costly? How effective? What if the voters have by then elected a more conservative Congress that wants to repeal the law? Such factors are not supposed to influence constitutional interpretation, but sometimes they do.

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