Diane Cohen

Surprises, Strong Finish Mark Last Day of Supreme Court's PPACA Fight

Posted on March 29, 2012 | Author: Diane Cohen
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As the Supreme Court considers President Obama’s healthcare law this week, Goldwater Institute Senior Attorney Diane Cohen is your guide to the proceedings. Today, Diane recaps Wednesday’s activities.

On the last day of oral arguments on the President’s health care law, the Court considered the severability and Medicaid expansion issues.

Paul Clement, in arguing before the Court on behalf of the 26 states, said the mandate is the “heart of the Act,” without which the Act is but an empty shell – a phrase echoed by several of the justices. While I am not a betting girl, I will venture out on a really wide and sturdy limb and predict the following based on what I heard: If the Court finds that the mandate is unconstitutional, at least some of the other provisions of the law will be stricken along with it. I make this prediction because not a single justice seemed to argue or otherwise indicate that the mandate could be cleanly severed from the remainder of the law.

The argument focused on what had to go if the mandate was stricken, with the states and other plaintiffs saying the entire law must fall, and the government saying just the insurance regulations would be tied to the mandate. These regulations are known as the “guaranteed issue” and “community ratings” provisions that require insurance companies to cover preexisting conditions and prohibit insurance rates from being based on actuarial assessments. Only the Court-appointed lawyer – there specifically to argue that position because that was the ruling of the 11th Circuit -- argued that the mandate could be severed from the remainder of the law.

Justice Scalia referred to the mandate as being the “heart” of the Act and asked the Deputy Solicitor General to name one prior case where the “main purpose” of the act was found unconstitutional but left the remainder of that act in effect. He could provide no example.

Ultimately, this issue appears to come down to the following: in the event the mandate is stricken, what, not whether anything else, will go with it.

Medicaid expansion: One-liners and Arizona as Exhibit A

On Medicaid expansion, Chief Justice Roberts likened its coercive effect on the states to a gun to the states’ head -- where at best they will be hedging their bets as to whether the Secretary would pull the trigger. At issue is the law’s mandate that states either expand Medicaid coverage to millions of people at a cost of billions of dollars, or lose their Medicaid matching funds altogether. The legal question: Whether or not this federal mandate is unconstitutionally coercive, in that the states have no choice to comply or lose everything.

One of the best lines of the day came from Chief Justice Roberts. When speaking about the law’s mandate that the state expand their Medicaid pools or lose all Medicaid funding, he asked the Solicitor General: “If it’s such a good idea why do you need the club?”

Some of the justices recognized the coercive nature of the federal government having the ultimate power to cut off Medicaid funding to states that do not expand their eligibility pools. In fact, the Arizona was used as Exhibit A, as a state that was threatened with being cut off from Medicaid matching funds if it did not comply with the Medicaid expansion mandate.

Justice Kagan on the other hand couldn’t grasp why a state would want to refuse a “boat load of federal money to spend on poor peoples’ health care,” apparently ignoring the budget-crippling strings attached to that “boat load.”

While the Court’s decision to consider the Medicaid issue at all surprised many, and while many thought it unlikely that the Court would find it unconstitutionally coercive, some observers left the argument feeling more optimistic that the Court just might strike this down. The takeaway seems to be that anything is possible.

A strong finish, and a look ahead

As the new president of the Arizona chapter of the Paul Clement fan club, I am concluding my reporting with the closing words of the final argument on the final day, which Paul Clement delivered. They came after a monologue of sorts from the Solicitor General who had just described the President’s health care law as one that “unshackle[s]” “millions of people” so that they can “have the opportunity to enjoy the blessings of liberty.”

Let me just finish by saying I certainly appreciate what the Solicitor General says, that when you support a policy, you think that the policy spreads the blessings of liberty. But I would respectfully suggest that it's a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not. And it's a very strange conception of federalism that says that we can simply give the States an offer that they can't refuse, and through the spending power which is premised on the notion that Congress can do more because it's voluntary, we can force the States to do whatever we tell them to. That is a direct threat to our federalism.

And with that, the entire country waits for a decision.

Learn more:

Washington Free Beacon: White House Tries to Rebrand Mandate

Los Angeles Times: Justices Poised to Strike Down Entire Healthcare Law

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