OP-ED

How Did the Challenge to the Affordable Care Act Ever Make it to the U.S. Supreme Court?

In 2009, when someone asked Nancy Pelosi a question implying that health reform legislation might be unconstitutional, she replied: “Are you serious?”

Pelosi wasn’t alone. At the outset, many legal scholars considered the challenge to the Affordable Care Act (ACA) both “implausible” and “frivolous.”

But over the next two years, the notion that state courts might strike down the ACA took on a life of its own. Most people had only a hazy idea of what was actually in the legislation; nevertheless the idea of “health reform” inspired heated rhetoric. Soon, state attorneys general and governors responded to the political opportunities, banding together to make what Slate Senior Editor Dahlia Lithwick calls, “novel arguments in the form of what was always a constitutional Hail Mary pass … It’s no accident that until the lower district courts started striking down the act, none of the challengers really believed that they could succeed.”

Yet somehow, this week, the highest court in the land is hearing oral arguments in a case that even supporters viewed as a long shot. How did this happen?

The media played a major role, fanning political passions by quoting every challenge – including the absurd claim that the bill called for “death panels.” As Rachel Maddow observed Monday night: this case was “built up as the Super Bowl of American partisan politics.” Thus, the Supreme Court was left with little choice: it had to hear “The Case of the Century.”

Why media fanned the flames

Why did reporters latch onto the story? First, the media is in the business of selling newspapers and air time. Health reform is a “hot-button” topic.

Secondly, as Linda Greenhouse explains in a scathing New York Times Op-ed: “Journalistic convention requires that when there are two identifiable sides to a story, each side gets its say, in neutral fashion, without the writer’s thumb on the scale” – even when “one side of a controversy obviously lacks merit.” (This is what some call “balanced” reporting.)

“Journalistic accounts of court cases … treat the arguments on both sides with equal dignity,” explains Greenhouse, a Pulitzer Prize winner who has covered the Supreme Court for 30 years, and now teaches at Yale’s law school. “So it’s perhaps not surprising that just about half the public apparently believes that … the individual mandate is unconstitutional.” But Greenhouse comes down on the side “truth-telling” over “balance”:

“I’m here to tell you: that belief is simply wrong. The constitutional challenge to the law’s requirement for people to buy health insurance … is rhetorically powerful but analytically so weak that it dissolves on close inspection. There’s just no there there.”

Nevertheless the media succeeded in blowing the story up, and in two years, what constitutional experts thought was a non-story became a Supreme Court case.

Legal minds saw a ‘non-story’

Over that time, the U.S. Constitution hasn’t changed. The challenge is as thin as it was in 2010, when Charles Fried, who served as soliciter general under President Ronald Reagan, told ABC News that “anyone” who questions the constitutionality of the Affordable Care act “is either ignorant – I mean, deeply ignorant – or just grandstanding in a preposterous way. It is simply a political ploy and a pathetic one at that.”

Prominent legal scholars also spoke out: “States can no more nullify a federal law like this than they could nullify the civil rights laws” said Timothy Stoltzfus Jost, a health law expert at Washington & Lee University School of Law.  Mark A. Hall, a law professor at Wake Forest agreed: “There is no way this challenge will succeed in court,” adding that the cases brought by the states seem “sort of an act of defiance, a form of civil disobedience if you will.” In other words, this was a Tea Party demonstration.

Initially, reform’s opponents lost in two state courts where judges appointed by Democrats ruled against them. They also lost their first case in an Appeals Court where Laurence Silberman, a conservative Reagan appointee who is regarded as a serious constitutional scholar, concluded that there is “no textual support” in the constitution “that mandating the purchase of health insurance is unconstitutional.

But other Republican judges sided with the challengers – most importantly in Florida, where that state and 26 partner states won. The mandate was no longer a Tea Party talking point; it had become an issue that Congressional Republicans took seriously.

This was not always the case. Until very recently, scholars who specialize in the history of health reform explain, the proposition that “it is wrong to allow people who can afford insurance to shift the cost of their care to others by refusing to provide responsibly for their future health needs” enjoyed “broad bi-partisan support … Indeed, ten current Republican Senators who now oppose the minimum coverage requirement as unconstitutional previously sponsored or cosponsored legislation that included an individual mandate.”

‘No free riders’ means everyone must pay

Republicans, like Democrats understood that at some point in time, virtually everyone will need health care. If we don’t want to let “free riders” impose the cost of their care on all of us, we must ask everyone to buy coverage.

Yesterday, Chief Justice John Roberts asked if the government has the power to require that everyone buy a cell phone. The answer is “No,” because cell phones are not a necessity. If someone doesn’t have one, the rest of us don’t feel obliged to buy one for him. But health care is a necessity. And in our society, we are not inclined to leave people to bleed to death on the sidewalk because they didn’t buy insurance.

It is only recently, as healthcare reform became “Obamacare,” that conservatives have disavowed a mandate they once embraced. In other words, it seems that they are objecting, not to the idea everyone who can afford it should purchase insurance, but rather to the fact that President Obama has succeeded in doing what so many past presidents have tried and failed to do.

Could it be that this debate is really not about the Constitution, but instead, about what Senate Minority Leader Mitch McConnell has called Republicans’ “number one goal” – to get Obama out of the White House?

That said, I remain extremely hopeful that when the justices hand down a decision in June, they will act as officers of the court, not as politicians.

Maggie Mahar is an author and financial journalist who has written extensively about the American health care system. Her book, Money-Driven Medicine: The Real Reason Health Care Costs So Much, was the inspiration for the documentary, Money Driven Medicine. She is a prolific blogger, writing most recently for TIME’s Moneyland. Previously she wrote and edited the Health Beat blog for the progressive think tank, The Century Foundation. Previous work for the Health Insurance Resource Center includes Will the Supreme Court strike down health reform? She also recently provided background on Congressional health care legislation for HealthReformVotes.org, a special project of the Health Insurance Resource Center. This post first appeared at healthinsurance.org

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Davi StapletonspikeAlice Svobodastevemichael ricciardelli, j.d. Recent comment authors
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Davi Stapleton
Guest

There are 60 million people in the United States who do not have affordable health care. When we finally get afordable health care for many of those needy people. Uncaring people try to take it away like 2,000 years ago uncaring people took our beloved Lord Jesus Christ away from the poor who needed him. But unlike Jesus who continues to live in our faith. when affordable health care goes. We will revert back to the way it was. 60 million people will be without health care and those people will continue to be ridiculed by uncaring people. I hope… Read more »

MD as HELL
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MD as HELL

“The ideological question that is the central to our government is whether the Constitution should reflect the country of the 21st century or the 18th century.” This is the wrong question. The correct question: “The ideological question that is the central to our FREEDOM is whether the Constitution should reflect the country of the 21st century or the 18th century.” The Constitution establishes a federation of states, each with its own government. The states each maintain (or should maintain) more authority over its citizens than does the federal government. Mitt Romney rightly advocates for states to determine healthcare reform for… Read more »

DeterminedMD
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DeterminedMD

Gotta give credit to the authors of this site, and to Ms Mahar for allowing a post or even more gutsy, providing one spontaneously, as the thread just keeps goin’ and goin’ like that bunny! Let’s have a moment of pure candor, both Scalia and Thomas are as equally partisan and non negotiable as Sotomayor and Kagan. So just attacking one side of the equation is intellectually dishonest. If you want to be taken seriously and respectfully as a commenter who is championing a cause that is really about the better of society, can the partisan commentary overtly, please! But… Read more »

Maggie Mahar
Guest

Bobby G. & Pcb– Bobby G,– Thanks for sending the link to this Time Magazine article http://ideas.time.com/2012/03/26/why-the-supreme-court-should-uphold-the-health-care-law-9-0 Others mighit find it interesting I would add that Time Magazine is not usually seen as a distinctly liberal or partisan magzine. It’s pretty mainstream. pcb–I’m not saying “liberals are right” I’m saying that legal scholars are right. and as pointed out above, lawschools are hardly a hotbed of liberalism. And I didn’t say Scalia had no credibility. I said he undermined his own credibility when he made this comments. But you and I will l just have to agree to disagree on… Read more »

pcb
Guest
pcb

Sounds like you’re sticking to “we’re right, and they’re partisan.”

For the MMahar record:
Clarence Thomas is not intelligent. And Scalia has no credibility.

Intelligent people will disagree with you. People can have reasonable opinions that don’t support your politics.

Maggie Mahar
Guest

PCB–I’m simply impressed by the fact that the vast majoirty of legal scholars– including higihly respected conservatives– all of whom know the constitution far better than I say that there is no basis in the constitution for striking down the law. Sometimes I’m not happy with what constitutional scholars say that the constritutoin will or will not allow because I would like to see another policy outcome. But I repsect the fact that , unlike the rest of us, they have spent years studying the constitution. That said, there are legal scholars who believe that we should interpret the constitution… Read more »

pcb
Guest
pcb

from Neal Katyal in your post above: “These are extremely difficult and complex arguments and I think the advocates, both from the government and the states and the friends of the court, all did a really terrific job in articulating the issues.”

So Maggie, if these are “extremely difficult and complex arguments” then is it possible that intelligent individuals could reasonably disagree on what the proper outcome is re: individual mandate? Or are you sticking to “we’re right, and they’re partisan?”

Maggie Mahar
Guest

A postcript on oral arguments and how this case has been politicized. This just reported on Bloomberg News: “Republicans Tampered With Court Audio in Obama Attack Ad” ” Republican Party Internet advertisement altered the audio of U.S. Supreme Court (1000L) oral arguments in an attack on President Barack Obama’s health-care law. “In a web ad circulated this week, the Republican National Committee excerpts the opening seconds of the March 27 presentation by Obama’s top Supreme Court lawyer, Solicitor General Donald Verrilli. In the ad, he is heard struggling for words and twice stopping to drink water “Obamacare,” the ad concludes,… Read more »

Maggie Mahar
Guest

Everyone; Michael There are many interesting comments on this thread– thank you. Michael: You are right, Nate seems to have more time than any of us. Getting back to the question of the oral argument, and whether it signals that the law will be struck down: Henry T. Greely, Stanford professor of health law and policy says: “Both Verrilli and Kneedler, they didn’t look as good. They were stumbling for words, having a hard time coming up with crisp answers. It looked to me like Clement did the better job of oral advocacy. ***”But oral argument is a performance. It’s… Read more »

DeterminedMD
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DeterminedMD

Just so you get the gist of the Democrat machine at hand, I hear on a Fox News report (yeah, Fox News is a news organization, I’m sure that will be attacked too) of a woman in Wisconsin who had a Support Walker sign in her car, and after refusing to remove it, got fired. Hmm, did management fire anyone in the same lot who had Recall Walker bumper stickers on theirs? Apparently not. This is an extension of what is Chicago/Obama style behaviors going on. Really, I find the title of this post to be so rude and dismissive.… Read more »

BobbyG
Guest

“Today’s ruling”? See date/time stamp: January 31, 2011 8:01 pm

The word “news” means “new information.”

(I know, it was just a sloppy cut ‘n paste)

Nate Ogden
Guest
Nate Ogden

If you lack the intelligence to discuss the subject you revert to checking grammar and spelling? Let me serve you the logic sense you obviously lack it. The argument was rather or not conservative attorneys, bar members, professors, some debate as to which specifically we were discussing, thought the mandate was constitutional or not. Holding this belief Jan 31, 2011 is just as valid to that argument as stating that belief today. I would argue having this belief prior to hearing it argued in SCOTUS is more proof of my point. No the cut an paste was fine it was… Read more »

BobbyG
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Nate Ogden
Guest
Nate Ogden

http://volokh.com/2011/01/31/todays-florida-district-court-ruling-striking-down-the-obamacare-individual-mandate/ “Today’s Florida district court ruling that the individual mandate is unconstitutional is by far the best court opinion on this issue so far. Judge Roger Vinson provides a thorough and impressive analysis of the federal government’s arguments claiming that the mandate is authorized by the Commerce Clause and the Necessary and Proper Clause, and explains the flaws in each.” One of the best parts of today’s opinion is Judge Vinson’s critique of the federal government’s argument that the mandate is constitutional under the Commerce Clause because the Clause gives it the power to regulate “economic decisions”: Judge Vinson has… Read more »

Maggie Mahar
Guest

Michael–

Thank you for your reply on the question fo whether law schools are dominated by liberals.

You write “What’s most surprising to me in this instance . . . , is that of the flourishing conservative bar, almost no one thought the individual mandate was unconstitutional. And to dismiss all law professors, engaged in a legal/textual analysis, as ”lefties’ is just ridiculous..”

Nate Ogden
Guest
Nate Ogden

“of the flourishing conservative bar, almost no one thought the individual mandate was unconstitutional. ”

Why are are the conservative attorney blogs laughing at how in denial the liberals are? Almost no one and I have seen 3-4 in a quick search that clearly are.

Calling BS on this one.

maybe locked in your secure little echo chamber screaming la la la you didn’t hear any, but there are plenty out there. Hint google la la la and you will find them deconstrusting your BS as you spin

michael ricciardelli, j.d.
Guest

should have specifically said flourishing professorial conservative bar–though I thought it implicit, you’ll have to excuse me as i work a tremendous number of hours here in my little echo chamber. And the point is, that even the conservative professors–and there are conservative law professors– overwhelmingly thought the mandate was constitutional under S. Ct. precedent. Whether they liked it or not is largely not relative– precedentially speaking, this wasn’t even a close call among the professorial bar, conservatives included. And if you don’t think there is a conservative professorial bar, read Goldsmith or Volokh or any of the other profs… Read more »

Nate Ogden
Guest
Nate Ogden

I read Volokh and Patterico regularly and both have had well reasoned arguments up since the beginning why it was not constitutional. I have read hundreds of legal opinions from conservatives on why it was unconstitutional.

michael ricciardelli, j.d.
Guest

hundreds? not from law professors.

Nate Ogden
Guest
Nate Ogden

why are we limiting it to professors? We already established they lean heavily left and most aren’t smart enough to get real jobs thus the teaching.

Are there even 100 conservative law professors in the country?

michael ricciardelli, j.d.
Guest

we are leaving it to law professors because that was the scope of my original comment, for which you “called B.S.”

Having said that, you seem to have considerably more available free time in your echo chamber than I do in mine. Fare thee well.

Nate Ogden
Guest
Nate Ogden

Have you read Volokh today? http://volokh.com/2012/03/30/why-did-legal-elites-underestimate-the-case-against-the-mandate/ Many of the legal academics who ridiculed Randy Barnett’s work on the mandate, and who were relied upon by legal journalists and commentators, thought their schools were advancing viable legal claims in Rumsfeld v. FAIR. Oops. Premier appellate litigators may have a good sense of how the Court is likely to assess complex constitutional law claims, but elite legal academics, not so much. I believe there are several factors at work, but one in particular is the increasing separation of the legal academy from the practice of law — a separation that is greatest… Read more »

Nate Ogden
Guest
Nate Ogden

“Another factor that contributes to this problem is the relative lack of ideological diversity within legal academia. The current Supreme Court has a right-leaning majority, but legal academia leans decidedly to the left. On many faculties their are few, if any, professors with any particular appreciation or understanding (let alone sympathy) for the jurisprudential views of a majority of the current justices. ”

Sounds like I am not the only one that disagrees

Maggie Mahar
Guest

Alice–

Yes, exactly. With every right comes a responsibilty.

As you say, “our compassion would never allow us to refuse treatment,”
but that means that if some who can afford health insurance refuse to buy it ” everyone one of us is paying for them” when they become sick.

(Under the reform law, we provide subsides for those who cannot
afford insurance.)

Alice Svoboda
Guest
Alice Svoboda

I hear many comments about having the freedom to make one’s own decision about whether or not to have health insurance. I was always taught that with every right there came a responsibility, consequently, these same individuals should agree to not show up at the emergency room unless they are able to pay for their services. I’m sure they would be appalled if the ER demanded proof that they will be able to pay the bill before any treatment begins. I doubt that there are very many people who could pay for the medical treatment resulting from a traumatic accident.… Read more »