Monday, March 26, 2012

Supreme Court Hears Challenges to Affordable Care Act - Your Comments?

The Supreme Court hears challenges to the Affordable Care Act this week. Below, the Court’s links to hearing the proceedings; and a summary of the questions at issue from the NY Times. Please use the Comments space below to post your own succinct, relevant and illuminating comments on this historic debate, and links to other resources.
The Court will hear argument in the Patient Protection and Affordable Care Act cases on March 26, 27, and 28. Because of the extraordinary public interest in those cases, the Court will provide the audio recordings and transcripts of the oral arguments on an expedited basis through the Court’s Website.

The Court will post the audio recordings and unofficial transcripts as soon as the digital files are available for uploading to the Website. The audio recordings and transcripts of the March 26-28 morning sessions should be available no later than 2 p.m. The recording and transcript of the March 28 afternoon session should be available no later than 4 p.m.

Anyone interested in the proceedings will be able to access the recordings and transcripts directly through links on the homepage of the Court’s Website. The homepage currently provides links to the orders, briefs, and other information about the cases. The Court’s Website address is

A Guide to the Supreme Court Challenges to Obama’s Health Care Law

Over three days starting March 26, the Supreme Court will hear arguments in an appeal from a decision largely ruling for 26 states, a business group and several individuals who contend that the 2010 health care law, President Obama’s signature legislative achievement, is unconstitutional. Related Article »

The Question: Is it too early to consider this case since the health law’s penalties do not start until 2014?

The central provision of the health care law, often called the individual mandate, requires most Americans to obtain health insurance or, starting in 2014, face a penalty.

A 19th-century law, the Anti-Injunction Act, forbids challenges to tax assessments until they are due, barring suits “for the purpose of restraining the assessment or collection of any tax.” The Supreme Court had interpreted the term “tax” very broadly for purposes of the law, and it has suggested that the act is “jurisdictional,” meaning that courts are powerless to hear suits barred by it even if both sides agree to proceed.

If the Supreme Court considers the individual mandate a tax under the Anti-Injunction Act, it may conclude that it cannot hear a challenge until April 15, 2015, when the first penalties become due.
The United States Court of Appeals for the Fourth Circuit and a dissenting judge on the District of Columbia Circuit agreed that the act requires courts to defer consideration of the challenge to the individual mandate.

The federal government initially argued that the act applied to bar the challenges, but it has changed its mind and now asks that the suits be allowed to proceed, agreeing with its opponents on this point. The states challenging the law say the act does not apply to them, as opposed to individuals, in any event. Because all of the parties agree that the Supreme Court may hear the case, the justices appointed a lawyer to argue that the act applies.

Among the questions the Supreme Court is likely to consider in connection with the act are whether a challenge to the mandate is the same thing as a challenge to how it is enforced, whether the penalties imposed by the health care law are taxes and whether the act is an inviolable jurisdictional command to courts.

Congress remains free, now or later, to amend the act to allow challenges to the health care law.
Date of Hearing: March 26
Time Allotted: 90 minutes
40 min.: Robert A. Long, friend of the court, appointed to argue that the suit is barred.
30 min.: Solicitor General Donald B. Verrilli Jr. says the challenges may go forward.
20 min.: Gregory G. Katsas, representing the National Federal of Independent Business and other private parties, agrees with the government on this point.

The Question: Is the individual mandate constitutional?

This is the heart of the case. The lower courts issued conflicting decisions in the numerous challenges to the health care law, and the Supreme Court agreed to hear an appeal from only one of them, from the United States Court of Appeals for the 11th Circuit, in Atlanta. That decision struck down the mandate. In contrast, the Sixth Circuit, in Cincinnati, and the District of Columbia Circuit upheld the law, while the Fourth Circuit, in Richmond, Va., said the constitutionality of the law was not yet ripe for review.

The federal government argues that Congress was authorized to enact the individual mandate under two provisions of Article I, Section 8 of the Constitution — its power to regulate commerce and its power to tax. The leading Supreme Court precedents support the mandate, too, the government says, because the health care law addresses a pressing national problem that is economic in nature.

Opponents of the law say that the requirement to buy a product or service is unprecedented, regulates inactivity rather than activity and would allow Congress essentially unlimited power to intrude on individual freedom. They say the government cannot articulate a principle that would limit its power were the law upheld.

Date of Hearing: March 27
Time Allotted: 2 hours
60 min.: Solicitor General Donald B. Verrilli Jr. defends the law.
30 min.:Paul D. Clement, representing 26 states, challenges the law.
30 min.:Michael A. Carvin, representing the private parties, challenges the law.

The Question: If the individual mandate is ruled unconstitutional, must the rest of the health law fall as well?

Should the Supreme Court strike down the individual mandate, it must decide whether some or all of the balance of the law must fall as well.

Though the lower-court ruling issued by the 11th Circuit determined that Congress had exceeded its constitutional authority in enacting the individual mandate, it said the balance of the law survived. Neither side agrees. The government argues that two provisions requiring insurance companies to accept all applicants at fixed rates are intertwined with the mandate and must fall along with it.

Opponents of the law say the mandate is its keystone, meaning that no part of the law can survive without it. Here, too, the Supreme Court has appointed a lawyer to argue a position that neither party advances – that the mandate may be surgically removed if the court holds it unconstitutional.

Date of Hearing : March 28
Time Allotted: 90 minutes
30 min.: Paul D. Clement, representing 26 states, argues that the entire law must fall.
30 min.: Deputy Solicitor General Edwin S. Kneedler argues that most of the law should survive, even if the mandate is struck down.
30 min.: H. Bartow Farr III, friend of the court, appointed to defend the ruling that struck down only the mandate.

The Question: Was Congress entitled to impose conditions on the states in expanding the Medicaid program?

The sprawling 2010 law contains many provisions not directly in front of the court. But the justices did agree to hear a challenge to a provision relating to Medicaid, a challenge by the 26 states that argues that Congress exceeded its constitutional authority by expanding the eligibility and coverage thresholds that states must adopt to remain eligible to participate in the joint federal-state program that provides health care to poor and disabled people.

The problem, they say, is that Congress did not tie the law’s new conditions only to new federal money but rather made the new terms a condition of continued participation in Medicaid, threatening states with the loss of all federal Medicaid funds.

The federal government argues that such shifting conditions are routine in all sorts of federal programs and that the Medicaid program itself specified at the outset that the rules could change.

Date of Hearing: March 28
Time Allotted: 1 hour
30 min. Paul D. Clement, representing 26 states, challenges the law.
30 min. Solicitor General Donald B. Verrilli Jr. defends the law.

Links to Briefs: (minimum coverage) Medicaid expansion; consolidated

The Court heard arguments today, Monday, March 26, 2012, on the Anti-Injunction Act issue of the Patient Protection and Affordable Care Act cases. (Dept. of H&HS v. Florida, 11-398) The audio recording and unofficial transcript of the oral argument on the Anti-Injunction Act issue are available at this link:

Saturday, March 24, 2012

For Trayvon Martin: Now Imagine

From "A Time to Kill," 1996.  Matt McConaughey as lawyer Jake Tyler Brigance, presents the summation defending his black client for attacking his daughter's rapists:

Jake Tyler Brigance: [in his summation, talking about Tonya Hailey] I want to tell you a story. I'm going to ask you all to close your eyes while I tell you the story. I want you to listen to me. I want you to listen to yourselves. Go ahead. Close your eyes, please. This is a story about a little girl walking home from the grocery store one sunny afternoon. I want you to picture this little girl. Suddenly a truck races up. Two men jump out and grab her. They drag her into a nearby field and they tie her up and they rip her clothes from her body. Now they climb on. First one, then the other, raping her, shattering everything innocent and pure with a vicious thrust in a fog of drunken breath and sweat. And when they're done, after they've killed her tiny womb, murdered any chance for her to have children, to have life beyond her own, they decide to use her for target practice. They start throwing full beer cans at her. They throw them so hard that it tears the flesh all the way to her bones. Then they urinate on her. Now comes the hanging. They have a rope. They tie a noose. Imagine the noose going tight around her neck and with a sudden blinding jerk she's pulled into the air and her feet and legs go kicking. They don't find the ground. The hanging branch isn't strong enough. It snaps and she falls back to the earth. So they pick her up, throw her in the back of the truck and drive out to Foggy Creek Bridge. Pitch her over the edge. And she drops some thirty feet down to the creek bottom below. Can you see her? Her raped, beaten, broken body soaked in their urine, soaked in their semen, soaked in her blood, left to die. Can you see her? I want you to picture that little girl.

Now imagine she's white.