While Republicans use the Affordable Care Act as a hammer against embattled Democrats across the nation -- a spot prepared for the West Virginia gubernatorial race was airing on Washington television, citing unnamed "experts" who said the law would destroy jobs -- the fight in the nation's highest court is supposed to be non-political.
Except it won't be. Not completely.
The justices have proved time and time again, in cases such as 2000's Bush vs. Gore and 2010's Citizens United vs. FEC, they can be just as political as the rest of the country when the stakes are high enough though their language may be couched in the gracious phrases of the Constitution.
Petitions from the 26 states challenging the core provisions of the act; from Virginia, which has mounted its own challenge separate from the other states, and from the Obama administration cascaded into the Supreme Court late last month, all asking the high court to hear the debate this term.
Though some legal experts may dispute it, the challenges carry with them shadows of the old fight over federalism, the jealously defended rights of the states against the iron power of the central government.
The heyday of the federalism debate occurred in the 1990s under the late Chief Justice William Rehnquist, the paladin of states' rights.
An August 2000 article, posted online on the American Enterprise Institute's Web site, said the Supreme Court's normally reliable moderate conservatives consistently made up a narrow five-member majority, and " the 1999 term suggests that the court's federalist majority is prepared to enforce federalist principles against powerful nationalist constituencies."
In States vs. Morrison, the federalist majority -- Rehnquist and Justices Anthony Kennedy, Sandra Day O'Connor, Antonin Scalia and Clarence Thomas -- struck down the civil remedies provision of the 1994 Violence against Women Act, "which authorized the victims of gender-motivated violence to sue their aggressors for damages in federal court."
The narrow majority said neither the 14th Amendment nor the commerce clause -- which for decades had been used to underpin hundreds of laws only vaguely connected to interstate commerce -- allowed Congress to enact the civil remedies provision.
O'Connor has retired and Rehnquist has passed on but three of Morrison's 5-4 majority still sit on the court: Kennedy, Scalia and Thomas. The three join Chief Justice John Roberts and Justice Samuel Alito to make up the new five-justice conservative majority that often holds sway in the current court.
To suggest that federalism wouldn't have an effect on how those five justices analyze the healthcare challenges would be to engage in liberal denial of the first order.
The 26 states challenging the Affordable Care Act -- Florida, South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Colorado, Pennsylvania, Washington, Idaho, South Dakota, Indiana, North Dakota, Mississippi, Arizona, Nevada, Georgia, Alaska, Ohio, Kansas, Wyoming, Wisconsin and Maine, and the Michigan attorney general and the Iowa governor -- are controlled by Republicans.
Their petition asks the Supreme Court to resolve several questions: "Does Congress exceed its enumerated powers [in the Constitution] and violate basic principles of federalism when it coerces states into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program [Medicaid]? ..." "May Congress treat states no differently from any other employer when imposing invasive mandates? ... " and "Does the Affordable Care Act's mandate that virtually every individual obtain health insurance exceed Congress' enumerated powers and, if so, to what extent (if any) can the mandate be severed from the remainder of the act?"
The last question has received the most attention in the lower courts. The challenge by the 26 states was largely sustained in the U.S. appeals court in Atlanta, the only U.S. appeals court to do so. But any Medicaid cutoff is a very serious issue for the states.
Medicaid accounts for more than 40 percent of all federal funds dispersed to states -- $251 billion in 2009 alone -- and approximately 7 percent of all federal spending.
The petition filed by Virginia Attorney General Kenneth Cuccinelli II takes a different tack, as did the arguments in the lower courts.
As Congress enacted healthcare reform, Virginia's Legislature enacted a law specifically blocking its requirement that most Americans get health insurance. But a U.S. appeals court in Richmond said the law did not give the state "standing" -- the right to file the challenge. Standing requires a plaintiff to show an "injury-in-fact" has occurred.
"The [state law] merely declares, without legal effect, that the federal government cannot apply insurance mandates to Virginia's citizens," the appeals court opinion said. "This non-binding declaration does not create any genuine conflict with the individual mandate, and thus creates no sovereign interest capable of producing injury-in-fact."
The Virginia petition to the U.S. Supreme Court asks whether the appeals court in Richmond "erred when, contrary to well developed sovereign standing law in this court and in other [U.S. appeals court] circuits, it became the first circuit to deny that a state of the Union has standing to defend its own code of laws."
The petition also asks whether the appeals court "erred, and opened a circuit split, when it construed the Virginia Health Care Freedom Act contrary to the construction placed upon it by the chief law officer of the Commonwealth of Virginia by holding it to be merely symbolic and therefore not a real law capable of giving rise to a sovereign injury, basing this holding in part upon a misreading of the Virginia Constitution and acts of the Assembly."
Among other questions, the petition asks, "Whether the power claimed by Congress in the Patient Protection and Affordable Care Act ... to mandate that a citizen purchase a good or service from another citizen is unconstitutional because the claimed power exceeds the outer limits of the commerce clause even as executed by the necessary and proper clause."
The commerce clause of the Constitution gives Congress the power to regulate interstate and foreign commerce. The necessary and proper clause gives Congress the power to do what it takes to enforce its enumerated powers.
For its part, the Obama administration's petition to the Supreme Court relies secondarily on federal law, but principally cites the commerce clause in Article I of the Constitution.
The requirement that most individuals get health insurance -- those who could afford it -- "is a valid exercise of Congress' commerce power," the government petition said. "It prescribes a rule that governs the manner in which individuals finance their participation in the healthcare market, and it does so through the predominant means of financing in that market -- insurance. It directly addresses the consequences of economic conduct that distorts the interstate markets for healthcare and health insurance -- namely the attempt by millions of Americans to self-insure or rely on the back-stop of free care, and the billions of dollars in cost-shifting that conduct produces each year when the uninsured do not pay for the care they inevitably need and receive."
Citing a 1995 Supreme Court decision that reinforced the principle of federalism by striking down a U.S. law banning guns near schools, the administration's petition said, "'Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.' And it is necessary to make effective the insurance market reforms ... that all agree Congress has the authority to impose.
"Congress' enactment of the minimum coverage provision thus rests upon direct, tangible and well-documented economic effects on interstate commerce ... not effects 'so indirect and remote that to embrace them would effectually obliterate the distinction between what is national and what is local."
Bottom line from United Press International: The Supreme Court will accept at least the challenge by 26 states, and possibly Virginia's, for argument this term -- no surprise to anyone, of course.
But any eventual high court ruling in the dispute would at this point be too close to call -- with only a very slight edge going to the states. A better picture may emerge if the justices hear and comment on the case from the bench later this term.
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