Simon Lazarus

by Jeremy Leaming

The spin is in on today’s health care law oral arguments – Paul Clement, the attorney for the state’s challenging the law’s minimum coverage provision, is awesome, and the provision is in trouble.

But, as noted yesterday by constitutional law professor Garrett Epps you’re on wobbly ground when predicting Supreme Court opinions based on oral argument theatrics. Sure, Clement is an outstanding high court litigator -- we’ll take it from SCOTUSblog founder Tom Goldstein who lavished praise on Clement at an oral argument preview last month, calling him one of the greatest attorneys of his generation.

What we can tell from today’s oral argument is that the Solicitor General Donald Verrilli, Jr., largely focused on Congress’s constitutional authority to regulate interstate commerce. The government has also argued that Congress’s constitutional power to tax and spend also supports the minimum coverage provision. Most of the justices, however, we're glued to the commerce clause question.

SCOTUSblog’s Lyle Denniston, a veteran Supreme Court correspondent, wrote of today’s oral argument that Justice Anthony Kennedy, “after first displaying a very deep skepticism,” provided toward the end of oral argument “the impression that he might yet be the mandate’s savior."

Additionally, the high court’s four moderate to left-of-center justices appear inclined to vote in favor of the ACA provision, which requires many to start carrying a minimum amount of health care insurance in 2014.

by Jeremy Leaming

As time quickly approaches for the U.S. Supreme Court to consider the highly politicized challenges to the Obama administration’s landmark domestic accomplishment, health care reform, anxieties are rising among supporters over the strategy used to craft and defend the law.

Simon Lazarus, an expert on the Patient Protection and Affordable Care Act, or ACA, writes in a new piece for Slate that such concern is misplaced, at best.

Lazarus, author of an ACS Issue Brief on the constitutionality of the ACA’s minimum coverage provision, which requires certain people to purchase health care coverage starting in 2014 or pay a penalty via their income tax return filings, notes that some preeminent health policy experts, such as Paul Starr, argue that lawmakers would have been smarter to root the minimum coverage provision in Congress’s power to tax, instead of both in its power to regulate commerce and to levy taxes.

Acknowledging that Starr’s “stature is beyond question,” Lazarus, public policy counsel for the National Senior Citizens Law Center, maintains that “on this matter of legal strategy, his certitude seems naïve. Indeed, especially in light of the ACA mandate’s actual track record in court to date, his take seems downright backward.”

First, Lazarus notes that opponents of the administration were itching to scuttle its health care reform law -- regardless of what constitutional power the mandate was rooted.

He writes, “The steam powering their opposition sprang from two sources: 1) partisan politics, part Tea Party zeal and the desire to discredit Barack Obama and obstruct his agenda; and 2) a hope, animating the libertarian legal advocates who staffed the lawsuits, of replacing existing law with pre-New Deal, so-called ‘Lochner Era’ doctrines that would invalidate substantially all 20th–century regulatory, civil rights, and safety net legislation.”

Next Lazarus defends the administration’s case for the ACA, saying before the current high court it looks best in the “Commerce-Clause format.”

Lazarus concludes, in part, that a string of “eminent conservative appellate judges have blown off opponents’ demands to overturn this allegedly ‘unprecedented’ federal power-grab. On the contrary, Republican appointees have concluded that upholding the ACA mandate is compelled by the text of the Commerce Clause and Supreme Court precedent, that it is no more ‘coercive’ than other measures, such as dedicated taxes and tax write-offs undergirding major existing health-insurance laws, and even, that the ACA’s approach could be a valuable model for conservative designs to privatize other components of the social safety net.”

On Jan. 6, the Department of Justice filed a brief with the high court defending the ACA.