COVID-19 & Healthcare

Posted by AzBlueMeanie:

Charles Fried is a professor of law at Harvard University. From 1985 to 1989, he served as President Ronald Reagan’s solicitor general. He specializes in constitutional law and is the author of many books on the subject, including 2004’s “Saying What the Law Is: The Constitution in the Supreme Court.” He also wrote a brief on behalf of 104 law professors arguing that the individual mandate is constitutional.

Professor Fried spoke to Greg Sargent after three days of oral argument on the Affordable Care Act and was highly critical of the conservative activist Justices of the U.S. Supreme Court. How did legal observers and Obamacare backers get it so wrong? – The Plum Line:

[F]ormer Reagan Solicitor General Charles Fried was scaldingly critical of the willingness of the conservative bloc of Supreme Court justices to traffic in some of the most well-worn Tea Party tropes about Obamacare.

“I was appalled to see that at least a couple of them were repeating the most tendentious of the Tea Party type arguments,” Fried said. “I even heard about broccoli. The whole broccoli argument is beneath contempt. To hear it come from the bench was depressing.”

Professor Fried earlier gave interviews to Greg Sargent and Ezra Klein of the Washington Post.

Posted by AzBlueMeanie: The "original intent" types always ask, "What would the Founding Fathers have done?" Would the Founding Fathers have supported a federal health care mandate? It turns out, The Founding Fathers loved health care mandates (By Jon Green at Americablog.com): In light of the Supreme Court hearing arguments this week about the constitutionality … Read more

Posted by Bob Lord Hard not to be depressed by the last three days at the Supreme Court. While the tea leaf readers obsess over each question asked and even the inflection of the Justices’ voices, the hard realities remain. First, there’s a reason why attorneys can in good faith argue both sides of a … Read more

Posted by AzBlueMeanie:

The last of the arguments before the U.S. Supreme Court on the Affordable Care Act dealt with the expansion of medicaid coverage, and what the challengers to the law call the "coercion" theory — the federal government withholding federal Medicaid funds to states that refuse to participate in the ACA. At its heart, this is a "states' rights" theory of sovereignty.

Lyle Denniston at SCOTUSblog.com summarizes the arguments. Argument recap: Will Medicaid be sacrificed?:

Unless a closing oration by a top government lawyer stirs some real sympathy for the poor, the new health care law’s broad expansion of the Medicaid program that serves the needy may be sacrificed to a historic expression of judicial sympathy for states’ rights.  It probably would require the Court to be really bold, to strike down a program passed by Congress under its spending power, and to do so for the first time in 76 years, but the temptation was very much in evidence in the final round of the Court’s hearings this week on the Affordable Care Act.  If that happens, it probably would be done by a 5-4 vote.

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The Justices were actively engaged in what was the Court’s first full exploration in history of the theory — never put into actual practice — that the conditions that Congress attaches to money it hands out to the states can be so onerous that they deprive the states of their sovereign independence, coercing them into compliance with federal controls.   Chief Justice John G. Roberts, Jr., allowed the argument to run 25 minutes beyond the scheduled hour.  The end result was what appeared to be a very sharp division within the Court, straight along ideological lines, with the skeptics about this “coercion theory” quite conspicuously in the minority.

Posted by AzBlueMeanie:

Wednesday morning's argument was on the issue of "severability." For some unexplained reason, Congress did not include a common "severability" clause in the Affordable Care Act. Opponents of the Act seized upon this and tried to argue in the lower courts that this means "all or nothing": if any one part of the Act is struck down, the whole Act must fail. The Courts of Appeals divided on this issue.

It would appear from this morning's Q&A from the Justices that they are not buying the "all or nothing" approach. Court's have frequently implied severability into statutes. The Court also demonstrated no stomach for going through the ACA line by line to determine what provisions would remain should they strike down other provisions, reasonably suggesting that this is best left to the legislative function of Congress.

Lyle Denniston at SCOTUSblog.com has the severability argument summary. Argument recap: A lift for the mandate?:

The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that.  A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress.  They could not come together, however, on just what task they would send across the street for the lawmakers to perform.  The net effect may well have shored up support for the individual insurance mandate itself. (emphasis added)

The dilemma could be captured perfectly in two separate comments by Justice Antonin Scalia — first, that it “just couldn’t be right” that all of the myriad provisions of the law unrelated to the mandate had to fall with it, but, later, that if the Court were to strike out the mandate, “then the statute’s gone.”  Much of the lively argument focused on just what role the Court would more properly perform in trying to sort out the consequences of nullifying the requirement that virtually every American have health insurance by the year 2014.