Walter Dellinger

by Jeremy Leaming

Before this week’s marathon oral arguments in the case challenging health care reform, many legal scholars, had strongly argued that the challengers’ arguments did not have a serious chance of surviving Supreme Court scrutiny.

Primarily the reasoning was based on high court precedent in favor of a broad reading of Congress’ power to regulate commerce and to tax and spend for the general welfare.

But those perceptions have been rocked following three lengthy days of oral argument, in which Justices Antonin Scalia and Samuel Alito appeared to have bought the challengers’ arguments against the minimum coverage provision, and, at times, revealed utter callousness toward national lawmakers’ attempt to reform a terribly inefficient and exclusive health care system that has left tens of millions uninsured.

Moreover as The New York Times columnist Paul Krugman noted, several of the justices appeared utterly or willfully ignorant of how “insurance works.” Krugman said Scalia’s comparison of purchasing health care insurance to buying broccoli “horrified health care experts all across America because health insurance is nothing like broccoli.”

“Why? When people choose not to buy broccoli, they don’t make broccoli unavailable to those who want it. But when people don’t buy health insurance until they get sick – which what happens in the absence of a mandate – the resulting worsening of the risk pool makes insurance more expensive, and often unaffordable, for those  who remain. As a result, unregulated health insurance basically doesn’t work, and never has,” Krugman wrote.

Walter Dellinger, former Solicitor General, at an ACS briefing on the oral arguments in HHS v. Florida, said it appeared, based mostly on their questions that three justices look ready to strike the minimum coverage provisions. Justice Samuel Alito’s questions were almost as hostile as Scalia’s and most, including Dellinger, believe Justice Clarence Thomas will vote to invalidate the law’s integral provision.

But Dellinger (pictured) is still holding out hope that two more justices will not join those three in killing health care reform.

“If there were five,” he said, “I would be shocked, because I think it would take us back to the jurisprudence of the 1920s. I think it would be the most stunning and indefensible judicial decision in half a century. It would be paired with Bush v. Gore in the law books forever.”

by Jeremy Leaming

The Supreme Court has set aside a large chunk of time later this month to hear argument over the constitutionality of the health care law’s integral provision, but the primary argument against the minimum coverage provisions has been loudly and repeatedly bandied about since the law’s enactment.

The law’s minimum coverage provision requires people who can afford it to obtain a minimum coverage of health insurance or pay a penalty when filing their income tax returns. It’s not the only provision being challenged by the states, but it is the one that has largely driven the right-wing argument that if the federal government can force some people to purchase health care insurance, there’s no limit to what Congress will be able to require individuals to purchase. (Maybe Congress will require everyone to purchase a gun, to protect their lives, from predators. While becoming a target of crime is obviously something that does and can happen anywhere in the world, it is not as certain as humans’ need for medical treatment due to many other causes, many natural.)

As noted on ACSblog numerous times, the liberty argument is not only wobbly, but hypocritical. A former U.S. Solicitor General Walter Dellinger noted at last year’s ACS Convention that many of the folks complaining about the minimum coverage provision are also supporters of laws requiring women to undergo sonograms and listen to propaganda from doctors before receiving an abortion.

In a March 7 piece for The Nation, Georgetown University law school professor and constitutional law expert David Cole provides, as usual for the professor, an accessible explanation about why the argument against the minimum coverage provision is unlikely to be invalidated by the high court.

Not only is the argument against the minimum coverage provision on flimsy ground, it’s also not conservative. The argument is, in reality, “radically libertarian,” Cole writes.

Cole states:

We’ve seen this kind of libertarian constitutional argument before. In the early twentieth century, after the Industrial Revolution had concentrated economic power in employers’ hands, Congress and the states passed many laws designed to protect workers from exploitation. Time and again, the Supreme Court invalidated these statutes. It deemed the federal laws beyond Congress’s power to regulate interstate commerce because they were said to regulate the terms of production, manufacture or mining, all of which were said to precede interstate commerce. And it invalidated state labor laws as infringements on the “freedom of contract” protected by the due process clause.

After the Depression, however, the court “overruled both lines of precedent it abandoned altogether the due process notion that economic regulation infringes on ‘freedom of contract,’” and “it has never since invalidated any law on that ground. And it ruled that in our integrated national economy, Congress is entitled to regulate on the presumption that all economic activity, not matter how local, affects interstate commerce.”