Keywords or Terms:
Patient Protection and Affordable Care Act (PPACA)(P.L. 111-148); Health Care
and Education Reconciliation Act of 2010 (HCERA)(P.L. 111-152); Affordable Care
Act; Constitutionality Contest; Oral Arguments; U.S. Supreme Court;
Republicans; Democrats; and, Contemplating the June Ruling from the Highest Court.
The litigation before the United States Supreme Court last
week on the constitutionality of the Affordable Care Act has been
trumpeted as exhilarating exercise of legal arguments between
titans: the current solicitor-general versus a former solicitor general.
The power of oral arguments and presentation from these legal
scholars was at play and the question on many observers' minds are: Could
either power of arguments between two legal luminaries lead to the demise of
the affordable care act, or could it have saved the law before the United States
Supreme Court Justices? Could the stand alone merits of the Affordable
Care Act convince the majority of the justices on the bench to rule in favor of
the constitutionality of the law, excluding the performance of oral arguments?
Could the 1867 Anti-injunction act derail argument over Patient Protection and
Affordable Care Act (PPACA) (Public law 111-148) and Health Care and Education
Reconciliation Act of 2010 (HCERA) (Public law 111-152), before the U.S.
Supreme Court? If at all, could we be experiencing schism within the supporters
and opponents of these law based on some of the provisions of the law that have gone into effect and how beneficiaries of these provisions are responding to
the possibility of the law being ruled as unconstitutional? These are the related questions before the highest court; and some, which the country needed answers
Supporters of the Affordable Care Act reckoned that the
merits and benefits of the law are good enough to rule the law as
constitutional. Antagonists of the law had reckoned also, that a law requiring
all Americans to carry health care insurance is unconstitutional, likening the
mandatory provision of the health care law as synonymous to asking Americans
to buy a private product, just like broccoli! Antagonists were
neither buying into the benefits or merits in the law nor the argument of the
power of congress to make any law as sacrosanct; to them, the constitution does
not give anyone the power to enact a law requiring Americans to purchase a
private product. Supporters of the law argue that the mandatory provision in the law is an attempt to manage risks, where a few who could afford health insurance are avoiding to purchase health care insurance because of the exorbitant cost, partly brought on by many, about 44 million, who cannot afford to buy health care insurance because of low income. Despite the fact that the law has the chance of affording roughly forty million more Americans to carry health care insurance at subsidized premiums or aggregated product deliverance through an exchange, the
antagonists are not prepared to forgo their liberty under the constitution to
have the law. Welcome to the new activist America!
A casual listener to the oral argument(s) over the
law before the US Supreme Court could have assumed that the Supreme Court
would rule either way; and that, the chances of the law surviving the
constitutional challenge, is a 50-50. Prior to the oral argument before the
highest court in the land, Vice President Biden had insinuated that the Supreme
Court will find the law constitutional. After the Oral argument(s) and
presentation, the White House reaffirmed that the US Supreme Court will
find the law constitutional based on its merits and the commerce clause. Congressional
power to make a law requiring citizens to carry health care insurance may be seen
as being in play in this case; however, many die-hard convicts of the
Affordable Care Act conclude that congress is within its power to enact
this law and there has been no need to bring the constitutional question,
especially the mandatory provision in the law before the U.S Supreme Court for consideration and or clarification. In addition, despite what seems to be a weak argument or
presentation of the government lawyers in support of the constitutionality
question, convicts of the law maintain that it will be premature if anyone
considered the comparative performance of the current solicitor-general against
the attorney(s) for the 26 states, before the US Supreme Court, as barometer of
measure of possible outcome in the case.
The minutiae of how laws are enacted may be calculated with
the length of time and power of debate from both sides of the argument in both chambers of congress. The affordable
care act was vigorously debated before the two chambers for close to
eighteen months and the current White House expended a lot of political capital
to ensure that the act was enacted into law without much hiccups. One would have imagined that with
the number of lawmakers who are constitutional lawyers and other support
staff, who by profession are constitutional lawyers, the constitutionality of the law would have been settled, since many of these legal junkies would have had the opportunity to vet the provisions of the law for constitutionality. This would have probably saved everyone the
nightmare of having to wait for another three months before hearing the ruling
from the highest court in the land.
Before delving into the issues before the court and what the
independent positions of the arguments for and against the law are, it is
probably wise to emphasize two important points regarding the current acrimony between
the two major political parties over the constitutionality of the law. First,
Democrats see the Affordable Care Act as a paramount opportunity to reform the
health care system and open up health care insurance to millions of Americans who
had no insurance till the advent of the law; and, ensure that free loaders of
the former health care system do not continue to take advantage of people
carrying health care insurance, since they had to chip in for the care of those
without health care insurance as they flooded the hospital emergency rooms.
The difficult challenges of the overburdened emergency room
visits from free loaders were becoming nightmarish for the hospitals and the
nation, partly because of the exorbitant costs of such visits and the
unthinkable burden it was having on insurance companies and payers. Patient
Protection and Affordable Care Act (PPACA) (P.L. 111-148); Health Care and
Education Reconciliation Act of 2010 (HCERA) (P.L. 111-152), conclusively
christened the Affordable Care Act and mischievously known as the Obama care
was going to become a panacea solution for many of the problems that deluged
the health care system and the delivery of health care services to many
Americans. The law had been half a century in making, the Democratic Party and
their leader in the White House, were ready and prepared to attempt to
find some solutions; and if not, restructure some of the impediments to the
American Health Care System, so that more Americans are able to have health
insurance coverage.
Second, Republicans, especially the ideologically driven
group in the current class of law makers in the lower chamber of congress, are
bent on espousing fiscal responsibility at all cost, not minding whose stomach
is being gored, as they contributed to the process of making law in congress.
To this group, the enactment of the Affordable Care Act is egregious and
any one supporting this law is bent at bankrupting the nation. These lawmakers
used many procedural moves in congressional lawmaking to ensure that the law
was not passed; despite all the possibilities in the law. It got to an extent
that a special congressional committee was set up, outside the congressional
lawmaking norms, to allow for ironing out of differences in some of the
provisions in the law. Even with those extra-ordinary efforts, the Republican
lawmakers were still against the enactment of the law.
Some of the provisions in the Affordable Care Act that are
now being called to question for their constitutionality, were actually loaded
on at the committee levels to allow for the law to be acceptable
or palatable to many more supporters from both aisle of congress.
Notwithstanding, all House Republican lawmakers failed to give their blessing
to the enactment of the law. All the votes that were cast for or against the
affordable care act were on the party line; and, the issue of validation
of provisions in the law for constitutionality was all but secondary to
many of the lawmakers. In addition, assurance of transparency in negotiated
provisions in the law was called to question, when the White House stepped in, subsequent
to a stalemate in arriving at a balance in the provisions in the law. Democrats
in both chambers of congress went to great lengths to ensure support for provisions in the law by Republican lawmakers. All the current agitations
surrounding the passing of the law which has formed the basis of fighting the
constitutionality of the law are coming from the Republican Party and believe
it or not, are the same basis which the Republican Attorney General in twenty
six states had brought this suit. There are perhaps some indications that the
fight against the law can be associated with efforts from some right wing
Republicans to make President Obama, a one-term President. In fact, the
acrimoniousness that have led to the mandatory question coming before the
highest court in the land, emanated from party politics, not necessarily the
merits of the law.
Approximately thirty million Americans are currently being
added to the health insurance role due to the enactment of the Affordable Care
Act. Health Insurance Coverage, that had eluded new college graduates and
children between the ages of 21 and 26, is now a standard provision of the law.
Patients with per-existing conditions and adults, who were once thrown under
the bus because of the stigma of the life-time limit on cost of care under the
old health care system, would hardly argue against the law and its associated
benefits since its enactment in 2010. Health Care System Reform that began under
President Lyndon Johnson and which had suffered its ups and downs under many
Democratic Party Presidents, who have attempted to make changes to the system because it was hardly working for many, intensified under
President Bill Clinton and was realized under President Barack Obama. Sadly,
the current mandatory provision that is being antagonized by Republicans was
once proposed by Republican lawmakers. These are the challenges and the
hypocrisies found in the current question before the United States Supreme
Court regarding the issue of the law's constitutionality.
Back to last week litigation, arguments and presentations before
the United States Supreme Courts, contemplated the following in a three-day, two hour session per day arrangement: 1) whether the Anti-Injunction Act
prohibits parties from challenging the mandatory provision in the law; 2) Whether Congress exceeded its constitutional authority in enacting the
Affordable Care Act with a mandatory provision; the constitutionality question;
3) If the mandatory provision is unconstitutional, can the severance of this
singular provision, de-legitimize the remaining part of the Affordable Care
Act; 4) Whether an argument of coercion comes to play regarding federal
government’s attempt to defund Medicaid, if an when states choose not to
participate in some mandated programs under Medicare – the issue of violation of
basic principles of federalism. As complicated as some of these issues are,
there is a fear that if the highest court in the land issues a decision prior
to the November elections, their decision(s) may impact the election outcomes.
Libertarians and conservatives however, could careless and would rather have an
outcome that vindicates their position than avoiding a conflict between
President Obama and Congress on the constitutionality issue regarding the
mandatory provision.
The first session of the pleadings before the US Supreme
Court tackled the issue whether the court has limited power; since the
Anti-Injunction Act of 1867 prohibits the court from striking down a tax law.
In this context, it was anticipated that the minimum mandatory provision in the
law would be construed as taxation. Because the mandatory provision has been
the lighting rod over the enactment of the law, ruling over the law would have
satisfied one group against another, probably disengaging one group from another. The Supreme Court had hired an attorney to argue that the mandatory
provision was taxation, thereby disentangling the acrimony in the case.
Incidentally however, the attorney got not very far as the Justices agreed to
rule over the case for the failure of conviction that the minimum provision is
taxation. Had the attorney convinced the justices, there would have been no need to go further, as the provision in the context of taxation wouldn't have been effective until 2015, twelve months after the unset of the provision in the law in 2014.
The argument of the solicitor-general in support of the
mandatory provisions met a lot of skepticisms by Justice Kennedy on March 27th;
and like this Lordship, other members on the bench were also skeptical about
the direction of the government’s argument regarding the constitutionality
question of the mandate. Assuming the court had found the mandatory argument as
unconstitutional, the government lawyer made a weak case that could have persuaded the justices to hold back striking down just that part of the law, and allowing the
remaining parts of the law to stand. If you ask an average person's opinion on the
performance of the government lawyer, the answer would have been abysmal. Making an argument that all parts of the law
were intertwined and that since one part of the law is found unconstitutional,
the whole law must be struck down was better articulated before the judges by
the opposition attorney representing the interest of the 26 States.
The possibility of justifying the mandate under the interstate commerce clause,
which had many precedents in past adjudications, was also not well articulated. The justices were asking questions that look very much over the head of the solicitor-general as he stumbled to make his argument. Maybe the life-line thrown to the solicitor
general from Justice Ginsburg saved the day!
The severability clause was argued on the third day before the highest court. The court heard the argument regarding
whether the federal government could arm-twist states to participate in the
Affordable Care Act by withholding financial support of other parts of the
Medicaid program in the states. The severability clause was probably the most
difficult aspect of the case before the court to argue by the government
lawyers, since their position was double sword: 1) Would the severability rule
apply as contemplated by congress; and if not, was the leading argument for
holding on to the remaining parts of the Affordable Care Act, convincing enough
for the U.S. Supreme Court Justice to subscribe to holding on to the whole law? and 2) whether congress would prefer the remaining part of the law, once the
constitutionality question had derailed the mandatory provision in the law? The
arguments between the two titans representing the defendant and plaintiffs in
the case was not lopsided; however, there was the perception at the end of the
third day of argument, that the government lawyers had not done as well as they
could, to allow the justices to fall in line with probably the most convicted
liberal justices on the bench, who are more attuned to having the law as it
stands today.
The blog tonight has attempted to do a very difficult thing,
argue for the law based on the merits and benefits of the law, while at the
same time, looking at the probable positions of the justices of the highest
court, including contemplating if the Supreme Court will allow the law to stand
as it is; or suffer the causality of poor representation of the government’s
position. The analysis of the case as presented by government lawyers may have
been inadequate here; however, it opens up opportunity for further
consideration(s) of what is probably the best known litigation in about half a
century before the US Supreme Court on a public policy issue. A somewhat
consistent argument has been articulated or furthered here, in the interest of
many of us, who still believe that the law is the best thing that has happened
to the America’s
health Care System, in the absence of a single-payer system or a complete
government sponsored health care system.
More consistent analysis of the arguments before the courts
would have reduced the controversies regarding the constitutionality of the law
or preferences of multiple interest groups. Attorney generals of 26 states and
their representing attorney, think that they advanced better arguments why the
law must be knocked down for being unconstitutional. Virtually all Democrats stand by the provisions in the law; however, are ready to accept the vulnerability of some provisions of the law from antagonists. Many protagonists of the
Affordable Care Act anticipate that majority of the United States Supreme
Court judges will appreciate the essence of the law and side with protagonists, if not for the merits in the law but for the, Non-partisan Congressional
Budget Office assessments of the financial saving from having the law. There is a sure conviction among the protagonists and supporters that majority, if not all parts of the law, will be found constitutional by the Supreme Court Justices.
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