Hear ye, hear ye
BY JULIE DELCOUR Associate Editor
Sunday, March 25, 2012
3/25/12 at 3:58 AM
For three days starting Monday, the fate of health-care reform in America will be argued before the U.S. Supreme Court. Proceedings will not be televised, an anachronism in an era when everything from revolutions, to wars, to the cavorting Kardashians, unfold on camera.
The public, if so inclined, will be foreclosed from viewing firsthand proceedings in a case of extraordinary national interest and one of particular interest in Oklahoma.
In November 2010, Oklahomans voted to opt out of the most controversial aspect of the law, the individual mandate, due to take effect in 2014. Attorney General Scott Pruitt later joined his counterparts in 25 other states in challenging the constitutionality of the 2,700-page act. Different rulings by different courts set the stage for the Supreme Court to hear the case.
The Patient Protection and Affordable Care Act (Obamacare, for short) is a complex piece of legislation - the signature reform of President Barack Obama's administration. Since passage it's been tangled up in economics and politics with an overlay of alarmist propaganda.
The proceedings next week may not do much to enlighten the public. Appellate arguments, by their very nature, do not follow linear story lines; they can be dry and arcane. Justices already have read hundreds of pages of legal briefs and will have specific questions.
A decision will be made rather quickly, on Friday, at a closed conference among justices. But the public will have to wait for their decision, in written form, to be released, probably at the end of the court term in late June.
Arguments will address four separate issues, the principal one being whether Congress exceeded its authority with the "individual mandate," which requires almost all adult Americans to maintain health insurance or risk a penalty in the form of a tax. Opponents argue that Congress has no right to tell an individual to buy a certain product.
Some experts contend that the individual mandate is a tax and that federal law does not allow a legal challenge to a tax that has yet to be collected. If the Supreme Court punts, a challenge to the Affordable Care Act on the merits could be delayed until at least 2015.
Justices also will hear arguments on whether the law is beyond Congress's power either to regulate commerce among the states or to tax and spend for the general welfare. Since 1995, the Supreme Court has held that Congress can act under the commerce clause to regulate economic activities that taken cumulatively have a substantial effect on interstate commerce, says constitutional law scholar Erwin Chemerinsky, who analyzes Supreme Court cases.
The 11th Circuit U.S. Circuit Court of Appeals has ruled that individuals who choose not to purchase insurance are not within commerce. "On the other hand everyone will need health care at some point and everyone therefore is engaged in economic activity either by self-insuring or purchasing insurance," Chemerinsky said.
A third issue is whether the other aspects of the Affordable Care Act are severable if the minimum coverage provision is declared unconstitutional. If the court declares that provision unconstitutional, could other aspects still stand? Supporters claim the law could still work without the mandate but that is far from a certainty.
A fourth issue is whether the increased burden on the states for Medicaid funding violates the Tenth Amendment. "The government argues that there is an important distinction between states facing a hard choice over whether to forgo federal Medicaid funding and states being commandeered and coerced," Chemerinsky said.
Since its passage, the law has drawn mostly criticism - too costly, too intrusive, too cumbersome. Relatively little has been presented - at least in Oklahoma - about anything positive relating to the Affordable Care Act.
Last week, policy analyst Kate Richey, of the Oklahoma Policy Institute, listed some of the ways Oklahomans have benefitted from the Affordable Care Act, including:
Individuals: 576 Oklahomans are now insured through the state's Pre-Existing Condition Insurance Plan; these individuals were locked out of the coverage system because of pre-existing conditions and previously were unable to obtain health insurance; 1,197,000 residents are free from lifetime limits on their health plan, and 616,000 Oklahomans received preventive services from their insurer with no cost-sharing.
Families: 37,262 Oklahoma young adults were able to keep insurance coverage by staying on their parents' plans until age 26; $14.4 million in support for maternal, infant and early childhood home visiting programs, which bring health professionals to meet with at-risk families in their homes; $1.8 million for services to pregnant and parenting teens and women.
Seniors: 54,173 people with Medicare saved an average of $525 per person on their covered brand-name prescription drugs, a savings of $28.5 million; 420,097 Oklahomans with Medicare received free preventive services.
What unfolds next week also has political undertones. Every Republican in Congress voted against the legislation. The Supreme Court's decision will have a bearing on the November presidential election.
Chemerinsky pointed out that every circuit judge but two - who reached the merits of the case and were appointed by a Republican president - have voted to strike the law down. Every judge but one who reached the merits and who was appointed by a Democrat president has voted to uphold it.
Should the court strike down the law it would be the first time since the New Deal that a major federal regulatory statute has been declared unconstitutional, Chemerinsky said.
How will the Supreme Court, which so often decides cases in 5-4 votes, come down?
Julie DelCour, 918-581-8379