5 things watch in health law oral arguments
how politics enter chamber?
overt politicking in front of justices unusual, can hardly ignore political firestorm on president’s health care law.
1 of liberal justices may or @ least hint on if law bad critics contend, surely public correct voting obama out fall. indeed, democrats’ midterm losses in congress due in no small part passage of law.
justice department’s main legal brief defending individual mandate, requires americans buy health insurance or pay fine, calls “a policy choice constitution entrusts democratically accountable branches make.” that’s supreme court-speak “let voters throw bums out!”
@ first glance, ruling mandate unconstitutional appear humiliating blow president. obama might perform political jiujitsu, turning negative ruling advantage firing base , campaigning against court fall.
obama has shown willingness drag court political fray, did during 2010 state of union address when blasted justices in person on citizens united campaign finance ruling. chief justice john roberts later called episode “very troubling.”
polls showing americans evenly divided on law , individual mandate unpopular, many republicans counting on “repeal obamacare” banner carry them victory in november. if court undoes law, rallying cry moot.
“if supreme court should find unconstitutional, believe appropriate decision, … there more risk president obama reelected because people think protected egregious reach our freedom,” rep. steve king (r-iowa) said @ news conference outside capitol last week. “if supreme court finds constitutional, believe barack obama not reelected because understand need vote him out of office repeal it.”
if justices studiously avoid discussion of politics, supporters , opponents of bill outside court, trying spin debate advantage in november.
what tea leaves tell us?
if obama administration wins case, it’s because either chief justice john roberts or justices antonin scalia or anthony kennedy voted uphold law.
real-time clue thinking: questions ask lawyers during oral arguments.
how government handle “broccoli” question?
it’s toughest question administration face: if congress can require americans buy health insurance, can force them buy broccoli, general motors cars, private retirement account or other product lawmakers think up?
question has surfaced in each of cases on health law in lower courts. government’s answer — law falls within limits of congress can regulate — has won on judges, not of them.
solicitor general donald verrilli, jr., need sharpen response justices public, understands “broccoli” idea isn’t versed in supreme court precedent on commerce clause.
“the government not standing before court , saying, ‘we have power make individuals buy wouldn’t otherwise consume,’” katyal said. “the government’s point consumes health care. it’s fact of our mortality.”
said concern congress require purchase , use of food, cars or else should extinguished protections in bill of rights.
“the bill of rights stop sort of ‘the government can force eat broccoli’” argument, katyal said.
if mandate goes, what?
while public waits clear thumbs-up or thumbs-down on obama’s health care law, decisions justices face more complex.
if strike down individual mandate, they’ll have decide how more of law take down it.
court has set 90 minutes of argument wednesday on issue, known in legalese “severability.”
obama administration has argued of law should stand if mandate falls 2 closely related provisions have go: 1 forcing insurers cover people pre-existing conditions , banning health plans charging higher premiums people health problems.
“the mandate critical success of law,” said neera tanden, key former administration aide involved in drafting legislation president of center american progress. “i don’t know of serious policy people think can ban discrimination based on pre-existing conditions without individual mandate.”
opponents of law court should throw out entire affordable care act, start finish, if mandate struck down. persuaded 1 federal judge in florida take approach, other judges have declined bold.
“the challengers when take heart out of bill, rest of body dies,” university of richmond law professor kevin walsh said @ politico pro briefing. “i think that’s least of options.
there’s lot of things [in law] have nothing @ you’re going hear in next few days.”
though neither side requested it, justices invited d.c. lawyer bartow farr argue mandate alone struck down — leaving congress figure out how repair nearly-3,000 page bill.
“they had go , commandeer present [that option] them,” walsh joked.
will court punt?
there’s chance blockbuster case fizzle: justices have way out of ruling year on whether mandate constitutional.
if they’re leaning way, show cards monday.
question on first day of arguments whether penalty not buying insurance tax. if is, justices anti-injunction act — law says americans have pay tax before can challenge in court — prevents them ruling on merits of law until @ least 2015.
such ruling monumental in wouldn’t do: wouldn’t answer core constitutionality questions @ least 3 years.
legal experts don’t expect court rule way, it’s possible. issue doesn’t fall along ideological lines, unlikely alliance of liberal , conservative justices form majority.
tax law provide convenient out if court doesn’t want rule on politically charged law until after 2012 election, said walter dellinger, supporter of law acting solicitor general in clinton administration.
it’s option, said, “if court think we’re heading dangerous thicket here of handing down decision in middle of presidential campaign.”
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