Sunday, April 1, 2012

Is the Affordable Care Act near Collapse: When the rule of law changes the options before the U.S. Supreme Court?

 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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