Supreme Court Sets Historic Showdown For Health Law

Nov 14, 2011
Originally published on November 14, 2011 5:27 pm

The Supreme Court said Monday it will review President Obama's health care overhaul, setting up an election year legal showdown.

In an apparent effort to be as comprehensive as possible, the court certified four questions for review. First, and most important: Did Congress exceed its constitutional authority in requiring virtually all Americans to have basic health care coverage?

The second: If the individual mandate is unconstitutional, does the rest of the law stand? Even the government now says there would be no way to provide the goodies everyone likes in this law without the expanded pool of people paying into the system.

The third question: Does the law impose unconstitutional conditions on the states by requiring them to pay 5 percent more into Medicaid by 2017 to cover the increased number of people under the program?

And the last question: Is it is premature to decide the first three?

As if to underline the significance of the case, the court allocated 5 1/2 hours for oral argument, the longest argument in modern times.

Were the court to invalidate the statute in its entirety, it would roll back many of the provisions already benefiting millions of Americans.

One of the most popular lets young people up to age 26 stay on their parents' health insurance plans. Another makes almost everyone with current health insurance eligible for preventive care services like immunizations and cancer screenings without having to pay a deductible or copayment.

And seniors on Medicare are seeing the gap in their prescription drug coverage — known as the doughnut hole — gradually being closed. All those things would go away if the law were struck down in its entirety.

In deciding to examine the health care law, the court selected as a vehicle a challenge brought by Florida and 25 other states, plus the National Federation of Independent Business. Of the four cases ruled on by the lower appeals courts to date, this was the only one in which any part of the law was struck down. It is also the biggest case, with challengers from many states and from the private sector as well.

The justices may also have chosen the Florida case because the lawyers who represent the parties in the states' case are old hands before the court and well-known for the quality of their work. The justices do take that kind of thing into consideration in choosing among cases, particularly a case like this one with huge economic and political ramifications.

The argument is likely to take place in March, with a decision by the end of June, four months before the 2012 election.

Just how that timing will play in the campaign is uncertain. On the one hand, if the court were to uphold the law, it might galvanize opponents seeking to have Congress revoke it. But if the law were struck down, it might take some steam out of the anti-Obama movement.

In the past, it has usually been those on the losing side of major Supreme Court cases who tend to get motivated. For example, Roe v. Wade, the famous case that legalized abortion, is credited with creating the modern anti-abortion movement.

And yet, in this instance it probably wouldn't help President Obama to have his defining domestic legislative achievement struck down as unconstitutional right as he is running for re-election. It could give Republicans a huge "I told you so"moment. So the political fallout in this case isn't easy to predict.

The length of the oral argument set by the court for the health care challenge is a recognition of the case's importance. At 5 1/2 hours, the argument will be the longest in more than 45 years.

Time set aside for argument has changed markedly over the course of American legal history. Before 1849, there was no time limit at all, and counsel would often go on for days. In 1849, the increased caseload caused the justices to set a two-hour limit per side, which was reduced to one hour in 1925, and a half-hour per side in 1970, which is where it remains for most cases today.

But big cases, with many parties and complexities, sometimes get more time. The 1974 Nixon tapes case lasted three hours. Bush v. Gore went 90 minutes. The 1971 Pentagon Papers took two hours; the challenge to the McCain-Feingold campaign finance law in 2003 was four hours.

Some of the longest arguments in the 1950s and 1960s involved civil rights. The landmark test of segregated schools was argued for five hours when it first came to the court. The 1965 challenge to the Voting Rights Act was argued for seven hours, over two days. The health care challenge is likewise expected to be argued over two days.

Monday's Supreme Court announcement that it would review the health care law was greeted with praise both by the law's supporters and by its opponents. That's because the one thing everyone wants right now when it comes to this law is certainty.

Both states and businesses that are planning for big changes starting in 2014 want to know if those changes are going to happen, and to what extent. Business and government are spending money now and want to make sure that money is not wasted.

Indeed, even the 26 states suing to have the law struck down are hedging their bets. Only four states have actually turned down all federal money to plan for the changes that are scheduled to take place.

While the odds are still that the court will not strike down the law in its entirety, insurance companies are quite panicked about the possibility that the mandate could be ruled unconstitutional but other parts of the law requiring insurance companies to insure people with pre-existing conditions would be upheld.

Those two have been considered inextricably linked, particularly by the insurance industry, which says it can't afford to cover sick people if healthy people don't also have to sign up for insurance.

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Transcript

MELISSA BLOCK, HOST:

From NPR News, this is ALL THINGS CONSIDERED. I'm Melissa Block.

GUY RAZ, HOST:

And I'm Guy Raz. First this hour, the U.S. Supreme Court has agreed to enter the health care debate. The court said today that it will review President Obama's health care overhaul, the law known formally as the Patient Protection and Affordable Health Care Act. As if to underline the significance of the case, the court allocated more than five hours of oral argument. That would make this the longest argument in modern times. We're joined now by our correspondents who cover the Supreme Court and health policy, NPR's Nina Totenberg and Julie Rovner.

And let me start with you, Nina. Five and a half hours? Holy moley. Why so long?

NINA TOTENBERG, BYLINE: Well, Guy, I can only assume the justices wanted to be as comprehensive as possible and to take a look at all of the questions raised in the lower courts, even when some of those questions were dismissed as total losers. The bottom line here is that the court certified four questions for review. First, and the most important, is whether Congress exceeded its constitutional authority in requiring virtually all Americans to have basic health care coverage. And second, if that individual mandate is unconstitutional, whether the rest of the law stands or whether, as even the government now says, there would be no way to provide the goodies everyone likes in this law without the expanded pool of people paying into the system.

The third question is whether the law imposes unconstitutional conditions on the states by requiring them to pay five percent more into Medicaid by 2017 to cover the increased number of people under the program. And the last question is whether it's premature to decide the first three.

RAZ: Now, if the law was struck down, Julie, it would roll back a lot of the provisions that are already in effect. First of all, what are some of those provisions?

JULIE ROVNER, BYLINE: Well, some of them are the most popular provisions in the law. One of them let's young people up to age 26 stay on their parents' health insurance plans. Almost everyone with health insurance is now eligible for preventive care services, like immunizations and cancer screenings, without having to pay a deductible or co-insurance. And seniors on Medicare are seeing that gap in their prescription drug coverage known as the donut hole gradually being closed. All those things would go away if the law was struck down in its entirety.

RAZ: So Nina, four federal appeals courts now have ruled on the health care law. Just one struck down any part of it - that was the 11th circuit, a ruling in the Florida case. It struck down the individual mandate. Why did the Supreme Court choose this case as its vehicle for review?

TOTENBERG: This really was the case everybody expected the court to accept, Guy. And there are a lot of reasons. First is the fact that this is the only case in which any part of the law was in fact struck down. Second, this is the biggest case brought by Florida and 25 other states, plus the National Federation of Independent Business. And the third reason is that the lawyers who represent the parties in the states' case are old hands before the court.

They're well known for the quality of their work and the justices do take that kind of think into consideration in choosing among cases, particularly in a big case like this.

RAZ: What about the timing?

TOTENBERG: The argument will likely take place in March, with a decision by the end of June, which, of course, is just about four months before the 2012 election.

RAZ: Julie, if this decision comes right in the middle of the election, what impact could it have?

ROVNER: Well, that's, of course, the trillion-dollar question. That's how much this law costs. And, of course, nobody really knows. Now, in the past, it's usually those on the losing side of major Supreme Court cases who tend to get motivated. For example, Roe v. Wade, the famous case that legalized abortion in 1973, is also credited with all but creating the anti-abortion movement. But in this case, it might not help President Obama to have his defining domestic legislative achievement struck down as unconstitutional right as he's running for reelection.

It would give Republicans a huge I-told-you-so moment. So the political fallout in this case, it's kind of hard to predict.

RAZ: And Nina, let me return to this question of the length of the argument. How does that compare, five and a half hours, to other oral arguments before the court?

TOTENBERG: Well, before 1849, there was no time limit at all and often the lawyers would go on literally for days. In 1849, the increased caseload caused the justices to set a two-hour limit per side, which was reduced to one hour in 1925 and a half hour per side in 1970, which is where it remains for most cases today. But big cases with many parties and a lot of complexity sometimes get more. The Nixon tapes case was three hours. The McCain-Feingold campaign finance challenge in 2003, that was four hours.

Brown versus the Board of Education, the first time it was argued was five hours. And the only case that I can find that's longer than the health care case was in 1965, the challenge to the Voting Rights Act, argued for 6.5 hours over two days and this one probably will be argued over two days, too.

RAZ: That's absolutely fascinating. I had no idea. Julie, one thing that seems notable about today's announcement is that those on both sides of this issue, the people who think that the insurance requirement is constitutional and those who think it's not, they are praising the court's decision to take up the case now. Why is that?

ROVNER: Well, I think one thing everybody wants right now when it comes to this law is some sense of certainty. Both states and businesses who are planning for big changes starting in 2014, want to know if those changes are going to happen and to what extent. And you know, for the talk of these 26 states that are suing to have the law overturned, only four states have actually turned down all the federal money that's being given out to plan for those changes that are scheduled to take place.

So you might say they've been hedging their bets. Now, even though most court-watchers say it would be very unlikely the court would strike down the entire law, if that individual insurance requirement is held unconstitutional, there are a lot of questions. Would that mean the part of the law requiring insurance companies to accept people with pre-existing conditions would have to fall, too? Those two have been considered inextricably linked, particularly by the insurance industries, which says it can't afford to cover sick people if healthy people don't have to sign up for insurance, too.

RAZ: Julie, Nina, thank you so much.

ROVNER: Thank you.

TOTENBERG: Thank you.

RAZ: That was NPR's health policy correspondent, Julie Rovner, and NPR's legal affairs correspondent, Nina Totenberg. Transcript provided by NPR, Copyright NPR.