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Healthcare, at long last, reaches the justices

By MICHAEL KIRKLAND   |   March 25, 2012 at 3:30 AM   |   Comments

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WASHINGTON, March 25 (UPI) -- The U.S. Supreme Court, at long last, is poised to hear three days of argument in the challenge to the national healthcare reform law, producing a decision before the end of June that could have a huge impact on the November presidential election.

Or at least, that's what many people say.

The rise or fall of President Obama's signature achievement is expected to reverberate way beyond the courtroom and the massive healthcare industry.

Argument in the challenge brought by 26 states, led by Florida, is set to begin Monday and carry through Wednesday.

There may not be much drama. The truth is, many Supreme Court arguments are about as exciting as watching a manatee munch on sea grasses.

Citing the extraordinary media interest, the Supreme Court said it would release audio tapes of the argument each day. However, no cameras in the court -- not now, not ever.

Writing in last week's The Atlantic, Andrew Cohen was less than impressed with the majesty of the occasion. Cohen is a legal analyst for "60 Minutes," and chief analyst and legal editor for CBS Radio News.

"Six hours of oral argument over three days!" Cohen writes. "Everyone is excited about it now but just you wait. Sixty minutes into the first 90-minute argument, over the Anti-Injunction Act ... most journalists and other courtroom observers will be staring past the somber justices to the curtains behind them, trying to count how many folds they can see between the pillars. Things may be so boring and bad in the gallery, in fact, that Justice Clarence Thomas himself may have to pipe up from the bench to wake everyone up."

Thomas speaks so rarely in court that when he does say something the crowd looks up from their notebooks to see who's talking.

Cohen is among those who "believe it is more likely than not that the healthcare bill will be deemed constitutional on its merits by a majority of the justices, including Justice Anthony Kennedy."

To do so, one or more of the court's five conservative justices on the nine-member court would have to put politics aside. Cohen said the nation's politicians unrealistically expect judges to act like politicians in the Supreme Court, which is at the "intersection of law and politics.

The first argument, set for Monday, is over the Anti-Injunction Act -- a fight that neither the Obama administration nor the states challenging the law wanted. In accepting the challenge last November, the Supreme Court itself said the two sides should be prepared to argue "whether the suit brought by respondents to challenge the minimum coverage provision of the Patient Protection and Affordable Care Act is barred by the Anti-Injunction Act."

Say what?

The 1867 Anti-Injunction Act bars suits against the federal government over a "tax" until the tax actually goes into effect and someone actually is required to pay it.

The main provision of the Affordable Care Act being challenged -- the requirement that everyone who can afford it have insurance or else pay a fine -- does not go into effect until 2014. Meaning it would be 2015 before the individual mandate could be thrashed out in the courts.

An article in Healthcare Finance News quotes Lyle Denniston, dean emeritus of the Supreme Court press corps who writes for SCOTUSBLOG, as saying that's not a probable scenario.

"It's possible that the court might 'kick the can' until 2015, but I don't think that's likely," Denniston told HFN. "I think the issues being argued in late March are too important to be delayed. There are two powerful narratives at work: one which says that healthcare reform is just another form of regulated interstate commerce [and] the other, which frames it as an issue of individual liberty."

On Day 2 of argument, Tuesday, the justices hear the two-hour debate over the individual mandate.

The thrust of the argument is whether the individual mandate exceeds congressional power outlined in Article I of the Constitution. A panel of experts put together by HFN "predicted that the Supreme Court is likely to uphold all provisions of the Affordable Care Act this spring."

The requirement that most individuals get health insurance -- those who could afford it -- "is a valid exercise of Congress' commerce power," the administration said in a brief to the high court.

On Day 3 of the argument, Wednesday, the justices will hear the 90-minute debate on whether the individual mandate can be "severed" from the rest of the law. In other words, if they strike down the mandate, does the rest of the law go down with it.

In a scathing article in the American Spectator, healthcare finance analyst David Catron said the mandate "is such an integral component of [the law] that it simply cannot be extracted without making nonsense of the statute, wrecking the health insurance industry and wreaking havoc throughout the U.S. healthcare system."

The Affordable Care Act, unlike some laws, does not have a "severability clause" instructing the courts that a provision can be separated from the rest of the provisions for judicial review.

Catron rumbles that "to strike down the mandate without invalidating the entire 'reform' law would amount to an egregious dereliction of duty" by the justices.

Also Wednesday, the justices hear 60 minutes of argument on the healthcare law's expansion of Medicaid.

Medicaid, a joint federal-state program -- the states pay about half the costs -- that provides healthcare for the poor, was signed into law by President Lyndon Johnson. Under the Affordable Care Act, it will be greatly expanded and provide coverage for millions of uninsured, including low-income adults without children.

In a brief, the 26 states challenging the law said one of its provisions effects "a massive expansion of Medicaid by requiring all participating states (which is to say, all states) to offer Medicaid to all individuals under the age of 65 with incomes up to 133 percent of the poverty level, with a 5 percent 'income disregard' provision that effectively raises that number to 138 percent. ... In addition to providing coverage for these newly eligible individuals, states must also provide coverage for millions of individuals who are uninsured despite being currently eligible for Medicaid, as those individuals will be forced onto the Medicaid rolls by the individual mandate."

The brief said the bipartisan Congressional Budget Office "predicts that at least 16 million individuals will enroll in Medicaid as a result of the combined effect of the expansion and the mandate, and that the federal component of Medicaid spending will increase by $434 billion by 2020 to cover the costs generated by that massive increase in enrollment."

The brief said the states want to know if Congress exceeds "its enumerated powers [in the Constitution] and violates 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]?"

Any threat of a Medicaid cutoff is serious. 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.

Medicaid, a joint federal-state program that provides health care for the poor, was signed into law by Lyndon Johnson. Under the Affordable Care Act, it will be greatly expanded and provide coverage for millions of uninsured, including low-income adults without children.

When Gov. Rick Scott rolled out Florida's 2012 budget, he brought along a chart that shows, since 1999, the state's overall budget has grown 30 percent while Medicaid spending is up 180 percent, NPR reported.

"It is absolutely not sustainable," Scott told a news conference.

Despite the massive challenge, the country is not dragging its feet as the healthcare law's provisions go into effect.

Two years after Obama signed the Affordable Care Act, a Commonwealth Fund report shows 49 states and the District of Columbia already have taken action supporting the law's implementation. The measures include passing legislation and issuing regulations.

Provisions in the federal law that kick in early, before the individual mandate -- ban lifetime limits on benefits and require dependent coverage for children up to age 26.

Meanwhile, the justices ruled last week in Coleman vs. Court of Appeals of Maryland state workers may not sue for damages when their government employers violated the self-care provision of the federal Family and Medical Leave Act.

Several sources say the federalism, or state sovereignty, principle used by the opinion may mean trouble for the administration in the healthcare arguments.

Michael Waterstone said online at PrawfsBlawg Coleman's plurality decision is "a growing trend of harmful and indefensible 'new federalism' decisions," SCOTUSBLOG reported.

And David Savage, the veteran Supreme Court correspondent for the Los Angeles Times, wrote that in Wednesday's healthcare argument, lawyers for Florida and the 25 other states "will make their case that the planned expansion of the Medicaid program for low-income people violates states' rights because it puts an undue burden on the states.

"That was the argument that prevailed in the sick leave case," Savage wrote. "Doug Kendall, president of the liberal Constitutional Accountability Center, noted the similarity and said that the 'majority's failure to give due deference to Congress' express constitutional powers is troubling.'"

© 2012 United Press International, Inc. All Rights Reserved. Any reproduction, republication, redistribution and/or modification of any UPI content is expressly prohibited without UPI's prior written consent.
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