By R.J. Taylor-Hahn
The Press
The Supreme Court embarked Monday on a three-day examination of the
Affordable Care Act “ObamaCare.” The court’s opinion, expected by the end of
June, could well be its most significant statement on the limits of
congressional regulatory power since the 1930s when the justices struck down
and then upheld President Roosevelt’s New Deal.
Supporters say they expect to win over at least one conservative vote.
Up for grabs, they say, are Chief Justice John Roberts, Justice Anthony
Kennedy, and maybe even the court’s conservative stalwart, Justice Antonin
Scalia.
Liberal justices
sure to uphold the law:
Justice Stephen Breyer
Justice Ruth Bader Ginsburg
Justice Sonia Sotomayor
Justice Elena Kagan
Conservative
justices sure to strike down the law:
Justice Samuel Alito
Justice Clarence Thomas
Justices in the
middle:
Chief Justice John Roberts: A staunch conservative, but he joined the
majority in the 2010 Comstock decision, which said Congress has the power to
legislate civil commitment of convicted sex offenders. Roberts may wait to see
how the other justices vote and then join the majority, which automatically
gives him the power to decide who writes the court’s opinion.
Justice Anthony Kennedy: A California conservative who is looked upon
as the court’s crucial swing vote. He joined the majority in the San
Antonio-related Lopez ruling of 1995, the first in decades to place limits on
the power of Congress to legislate under the Constitution’s commerce clause.
But he wrote that such powers would be sustained if it clear that an “economic
activity substantially affects interstate commerce.”
Justice Antonin Scalia: The heart and soul of the court’s conservative
wing. But Scalia voted with the majority in the 2005 Raich case, in which the
court ruled the Constitution’s commerce clause permits federal enforcement of
U.S. drug laws in California and other states permitting medical marijuana.
On Monday the justices started by handing down opinions before delving
into 90 minutes of argument. But today’s arguments do not focus on whether the
Affordable Care Act is constitutional. Instead, the justices are considering
whether the legal challenge to it has arrived too soon.
The problem is the Anti-Injunction Act, which dates to 1867. It says,
“No suit for the purpose of restraining the assessment or collection of any tax
shall be maintained in any court by any person.”
How does this
figure in the healthcare case?
It could block a suit against this key part of the healthcare law if it
imposes a tax. The law seems to say that no one can sue over a tax provision
until he or she has paid the tax.
How is the
Affordable Care Act a tax law?
During the debate over it, President Obama insisted it did not impose
new taxes. However, people who do not have minimum health coverage in 2014 will
be assessed a “penalty” to be paid on their tax return, which will be due in
April 2015.
Who asserted that
the court should postpone a decision until the first taxpayer has paid a
penalty and then sued for a refund?
Surprisingly, no one did. The Republican challengers and the Obama
administration agreed on this issue. They said the healthcare law was not a tax
law, and they said it was important that the courts rule now on the
constitutionality of its provisions. Federal and state health officials need to
know whether they should or should not plan to implement the complex new law.
Why then is the
issue before the Supreme Court?
Because the justices believe they may not rule on an issue if the law
says they should not.
Is the high court
likely to rule that the suits are premature?
It is quite possible. Chief Justice John G. Roberts Jr. has been wary
of the court’s ruling too soon on broad questions. And Judge Brett Kavanaugh of
the U.S. Court of Appeals in Washington, a friend of Roberts’ and former clerk
to Justice Anthony M. Kennedy, wrote an opinion in November saying the court
would be wise to put off a decision.
What would happen
if the court decides the Anti-Injunction Act prevents a ruling now on the
individual mandate?
The justices will meet behind closed doors Friday to discuss the entire
case and cast their votes. If five or more believe the new law imposes a tax,
they will write an opinion to explain their decision. The constitutionality of
the individual mandate would remain unsolved. However, the justices would still
be free to rule on the states’ rights challenge to the Medicaid expansion, the
issue to be debated Wednesday.
Justice Anthony Kennedy is the court's swing vote, and which side he
lands on could decide one of the most important cases in decades, a choice with
not only profound policy implications but one that could alter the course of
the 2012 presidential election.
"It's a very good time to be Anthony Kennedy, there's no doubt about
that," said Jeffrey Toobin, a legal analyst for the New Yorker and CNN.
"You have a court with four conservatives and four liberals and that
leaves only one vote in play."
 |
Supreme Court Justice Anthony M. Kennedy
|
Kennedy more often than not votes with the other justices appointed by
Republicans. He helped invalidate a handgun ban in the District of Columbia and
joined the majority in Bush vs. Gore, which ended Florida's recount in the 2000
presidential election. He has voted against affirmative action and is generally
a proponent of state sovereignty.
But Kennedy has a centrist, libertarian streak that has led to voting
to protect flag burning as free speech and for gay rights. A prominent
evangelical leader once deemed him "the most dangerous man in
America." He is viewed as open-minded but also capricious and overly
self-aware.
Early in his tenure, Kennedy joined a 5-4 decision upholding the death
penalty for juveniles. But in 2005 he wrote the majority opinion outlawing the
practice, saying public opinion had shifted. He wrote the majority opinion in
2007 upholding the partial-birth abortion ban despite signing onto a 1992
watershed decision upholding the central element of Roe vs. Wade.
"At various points in his judicial career, Justice Kennedy has
managed to infuriate pretty much everyone, all across the political
spectrum," then-court nominee Elena Kagan said at a 2006 Harvard alumni
luncheon. "What Justice Kennedy has done, time and time again, is to think
for himself."
Speculation is rampant about the outcome of the health care case, and
other justices are considered potential swing votes, including Antonin Scalia,
who like Kennedy is an appointee of Reagan.
President Barack Obama's legal team, in briefings submitted to the high
court in advance of oral arguments, has used Scalia's words in a 2005 decision
that upheld the federal government's right to prevent Californians from growing
marijuana for personal medical use even though state law allowed it.
The court ruled it was within the government's right to regulate
economic activity, a central element of the commerce clause in question in the
health care case brought by 26 states and formally named Department of Health
and Human Services, et al. vs. Florida, et al.
Kennedy was in the majority on the 2005 case but has sent mixed signals
on commerce clause issues, making it difficult to predict his thinking in a
case monumentally different in scale.
Kennedy, who is Catholic, grew up in Sacramento, Calif., the son of a
lawyer and lobbyist. The family was friendly with Gov. Earl Warren, who went on
to be the liberal lion of the Supreme Court. Kennedy worked as a legislative
page as a boy and on oil rigs in the summer as a teen. Kennedy was still living
in his childhood home when President Reagan picked him in 1987 after the failed
nomination of Robert Bork and then a second candidate, Douglas Ginsburg, who
withdrew after his admission of past marijuana use.
Reagan held out the squeaky-clean Kennedy as someone who would be
popular across party lines and Kennedy was unanimously confirmed, a show of
support unfathomable in today's hyperpartisan Washington.
Over the years he has developed a reputation for sweeping prose about
liberty that is sometimes mocked or seen as self-aggrandizing. "At the
heart of liberty is the right to define one's own concept of existence, of
meaning, of the universe, and of the mystery of human life,'' Kennedy said from
the bench during the 1992 decision upholding the constitutionality of abortion.
Scalia in dissent ridiculed the "epic tone."
But Kennedy's earnestness goes unquestioned. Former clerks say he
stressed an open dialogue and wanted his viewpoint to be challenged. "He's
concerned with the arc of constitutional law and wants to get it right,"
said Orin Kerr, who teaches law at George Washington University.
"I think you have a duty to keep an open mind," Kennedy said
in 2005. "That's not indecisiveness. That's just a commitment to the
tradition of the law."
• • •
The Patient Protection and Affordable Care Act, passed without a single
Republican vote, remains polarizing two years later. The case before Kennedy
and his colleagues will be career defining and could either entrench the law or
set off a bitter war over alternatives. The decision could come down in late
June, and likely will be a major issue in Obama's re-election bid and
congressional contests.
Kennedy has left signs — but no decisive answers — in several key cases
that will factor into the next few days.
In 1995, the court ruled in the first case since the New Deal to set
limits on Congress' power under the commerce clause. The decision in United
States vs. Lopez overturned the federal ban on gun possession near schools.
Kennedy, who had displayed a strong belief in federalism over the years, joined
the majority but wrote a concurring opinion that is likely to play heavily in
his thinking in the current case:
"The history of the judicial struggle to interpret the commerce
clause during the transition from the economic system the Founders knew to the
single, national market still emergent in our own era counsels great restraint
before the court determines that the clause is insufficient to support an
exercise of the national power."
In the 2005 marijuana case from California, Kennedy joined Scalia in
the majority opinion upholding federal law. Even if the marijuana was for
personal use, the court found it was still a commodity and subject to
regulation under the commerce clause.
Frank Colucci, a political science professor at Purdue University
Calumet and author of a book on Kennedy, said the health care case will test
the conflict inherent in the justice's thinking over the years: his belief in
judicial limits on federal power but a recognition of the practical conception
of commerce.
"That sets up the two main arguments in this case," Colucci
said. "The people who want to strike down the mandate will give an argument
that if you allow this to stand, there are no limits on what Congress can do.
The people who want to uphold the mandate will say you can't strike this
without undermining the foundations of the federal power to regulate commerce
that the court has accepted since 1937."
Six hours have been set aside for arguments, the most in four decades.
The hearings will not be televised, but the court has taken the unusual step of
agreeing to release same-day audio recordings "because of the
extraordinary public interest."
And all eyes will be on the man in the middle.
Kennedy, who likes to listen to opera at home while he ponders
difficult cases, may relish the position but can't stand the label he has
earned.
Here’s what
veteran Court-watchers will be looking for:
First, do Justice Scalia and Chief Justice Roberts tip their hands on
the AIA issue? Scalia is widely viewed as the most demanding when it comes to
the federal courts’ power to decide particular cases, believing that the courts
should not thrust themselves into controversial matters where not authorized to
do so. And the Chief is widely
viewed—not altogether correctly—as a “minimalist” who favors narrow decisions
that, when reasonably possible, duck controversial issues. If Scalia or the Chief signal their belief
that the AIA bars the mandate challenge at this time, that could carry weight
with their colleagues on the Court. I’ll be watching the Chief, who often acts
as a traffic cop at oral argument, to see how he steers the discussion.
Second, what do the justices’ questions hint
about whether the states are covered by the AIA? The district court and the Eleventh Circuit
that considered the 26-state lawsuit never considered the states’ legal standing
to challenge the mandate because it was enough that individual plaintiffs had
standing to support the challenge. But
questions by the justices about the states’ standing could point to an easy way
through the AIA thicket because the states (if they have standing) should not
be subject to the AIA for two reasons. A
decision on this ground, however, also could make it easier in the future for
the states to sue
to enforce limits on federal power, much like last Term’s decision in Bond v.
United States.
Third, what about the merits? Lawyers typically distinguish between
preliminary issues in a case, like the AIA, and the heart of the lawsuit, or
merits. But the barrier between the two
can break down, and justice are often eager to get beyond the preliminaries to
the interesting bits. We “[s]ometimes
have to peek at the merits to see if there’s standing,” an impatient Justice
Kennedy said to counsel at oral argument last Term. It would come as little surprise if the
justices—and Justice Kennedy in particular—want to “peek” a bit at the issues
to be considered in coming days, particularly regarding the constitutionality
of the individual mandate. If so, how
many justices will bring up the President’s infamous statement to George
Stephanopolous that the mandate is not, in fact, a tax?
Fourth, does the Court care about the consequences if it declines to
rule on the mandate at this time? Deciding that the AIA bars the most important
issue in this litigation may mean that ObamaCare goes into full effect before
the Court has an opportunity to address its lawfulness in 2015 or beyond. ObamaCare alone is expensive enough; an
additional four or more years of uncertainty as to whether the Court will
strike it down will cause even more pain.
To what end? Many of the justices
are, to varying extents, pragmatists, and they will want to know what happens
between now and 2015. If they buy the
argument of exploding costs and other problems, that may influence what they
think about the AIA and ObamaCare as a whole.
Anthony M. Kennedy
Born: Sacramento, Calif., July 23, 1936.
Family: Married, three children.
Education: B.A. from Stanford University and the London School of
Economics; LL.B. from Harvard Law School.
Work history: Private practice in San Francisco, Sacramento 1961-1975;
professor at McGeorge School of Law, University of the Pacific, 1965-1988; appointed
to the United States Court of Appeals for the 9th Circuit in 1975; President
Ronald Reagan nominated him as an associate justice of the Supreme Court, and
he took his seat on Feb. 18, 1988.
THE CASE BEFORE
THE SUPREME COURT
KENNEDY AND THE
COMMERCE CLAUSE
A central issue in the U.S. Supreme Court case on the national health
care law is the requirement that most Americans carry insurance, the
"individual mandate," or face a penalty. And it will hinge largely on
the commerce clause in the Constitution, which states that "Congress shall
have the power … to regulate Commerce with foreign Nations, and among the
several States, and with the Indian Tribes."
Proponents of the law say the government has the right to regulate
matters that have an effect on the national economy. Opponents say it's a broad
overreach. What's next, they say, mandates to eat broccoli or buy a certain
car?
As three days of oral arguments open Monday, intense focus will be on
one member of the court in particular, Justice Anthony Kennedy. Often the swing
vote, Kennedy has sided in favor of the commerce clause and against it, making
it difficult to determine his thinking in the landmark case.
In United States vs. Lopez he joined the majority in striking down a
federal law that made it a federal crime to possess a firearm in a school zone.
The court said it had nothing to do with commerce. Kennedy agreed but wrote a
concurring opinion that said he had reservations because the nation was moving
toward a "single, national market."
But in other instances Kennedy has joined the court in upholding
federal legislation. In Gonzalez vs. Raich, the majority opinion said the
federal government could control the cultivation of marijuana at home for
personal use (the case dealt with medical uses in California) because the
Controlled Substances Act dealt with production, consumption and distribution
of the drug "for which there is an established, and lucrative, interstate
market." The opinion said activities regulated by the federal law are
"quintessentially economic."
Below is a link to the transcript from the oral Health care Supreme
Court arguments, today 3.26.2012
No comments:
Post a Comment