Published March 25, 2012
For all the lofty legal wrangling that's expected at this week's historic arguments over President Obama's health care law, the story of two families running their own business helps boil the Supreme Court case down to its core.
Ariane Speck and her husband, Dustin, run a small eatery in Evergreen, Colo. She's overjoyed the two-year-old law allowed her husband to pick up health insurance even though he recently had brain surgery.
"To have it all covered was the difference between us losing our business, losing our homes, our employees losing their jobs, our town losing this thriving business," Ariane said, after her husband needed another operation. "It made all the difference."
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The law means something else to John Nicholson, who owns a flower and gift shop with his wife in northern Virginia.
"I can't afford a whole fleet of lawyers to handle all of the new regulations. I've got to handle that by myself. That's a burden," he said. Nicholson says the old system wasn't perfect but at least when he had a dispute with the insurance company, he said he could take his business elsewhere. It's leverage he doesn't think exists when dealing with federal bureaucrats.
This clash of opinions -- a disagreement at its heart over whether the law's benefits are worth the added government control -- will play out on the national stage this week. The Supreme Court will dissect the constitutionality of the health care overhaul for six hours over the course of three days and four cases.
No case has been given so much courtroom attention by the justices in nearly half a century. The economic and political ramifications of their decision could have repercussions for decades to come. Nearly one-fifth of the economy is tied to health care, and the reform legislation is the hallmark domestic accomplishment of the Obama administration.
It is a rare and historic case, one that will impact most Americans and potentially a presidential race.
The ruling, expected in early summer, will come about four months before voters decide whether to give Obama a second term. Every Republican presidential candidate has spoken at length to countless campaign audiences about wanting to repeal the law. It's a guaranteed applause line.
Obama enjoys similar approval when he defends the law in front of friendly audiences. Yet he gave it a passing mention during his most recent State of the Union address and let Friday's two-year anniversary pass with only a paper statement: "Today, two years after we passed health care reform, more young adults have insurance, more seniors are saving money on their prescription drugs, and more Americans can rest easy knowing they won't be dropped from their insurance plans if they get sick."
Perhaps the relatively modest outreach from the White House makes sense given that poll numbers consistently show Americans aren't thrilled with the law. A recent Fox News survey found that most voters want all or some of the 2,700-page law repealed, including 63 percent of independents. A majority of them also give Obama poor marks for his handling of health care.
Roadmap to the Supreme Court Hearings
The landmark hearings will be broken up over the course of three days.
Monday's opener is sure to be a letdown for people looking for a battle royal over health care because the 90-minute argument -- cases before the Supreme Court usually only last an hour -- has absolutely nothing to do with the federal government's involvement in regulating how health care is administered. Rather, it examines whether an obscure tax law passed during Reconstruction prohibits challenges to the Affordable Care Act (ACA).
That statute says no lawsuit can be filed challenging a tax provision -- in this case, the individual mandate requiring Americans to buy health insurance -- until after it's been implemented. All parties in the cases before the Court agree that the 1867 Anti-Injunction Act isn't applicable to the health care law. But one lower appellate court ruled otherwise and a prominent federal judge in Washington D.C. also said the current lawsuits against the controversial law must wait until someone has actually been forced to pay a penalty. That will not happen until 2015.
It's a preliminary issue the high court wanted to resolve, which is why it's the first case, but some people familiar with the Court's docket think it's unlikely the justices will ultimately issue a ruling saying the lawsuits will have to wait. Instead, the thinking goes, they will be eager to move on to the merits of the challenge which are addressed in the week's other cases.
If the Court eventually issues a blockbuster constitutional ruling, it will come from Tuesday's arguments about the individual mandate. The dispute is over the central provision of the law requiring near-universal participation in the new health insurance system.
The government argues it has the regulatory power under the Commerce Clause to force people to buy health insurance, even if they don't want to, because all people must at some time purchase health care and therefore are in the marketplace. "The Affordable Care Act expands access to health care services and controls health care costs by reforming the terms on which health insurance is offered and rationalizing the timing and means of payment for health care services," Solicitor General Don Verrilli wrote in his brief to the Court.
Opponents of the law maintain the breadth of the powerful Commerce Clause does not also allow for the government to force people into commerce. It's something they argue the Founders would never have approved of and wonder why, if constitutional, Congress has never before used this authority given the crises of past generations. "The only explanation for the utter absence of comparable mandates is the utter absence of constitutional authority," lawyer Paul Clement wrote on behalf of the 26 states challenging the law.
The arguments will also feature discussion over whether other parts of the Constitution, including the Necessary and Proper Clause and Congress's taxing power, gives the government cover for the health care law.
Wednesday will be the only day with two cases. The morning argument examines whether other parts of the law will be preserved if the mandate is struck down. Various courts below reached different conclusions and the Supreme Court, if it strikes down the mandate, will have to determine whether to keep some, none, or all of the rest of the law in place.
The afternoon case focuses on the expansion of Medicaid to increase coverage for poorer Americans. The states say costs associated with the expansion will be too much for their treasuries. They also object to the nature of the mandate from Washington saying lawmakers have turned Medicaid away from a federal-state partnership into a compulsory program.
Verrilli says the new Medicaid provisions are fully in line with the original workings of the program. He also points out that for the first couple years the federal government will fully pay for all costs associated with the expansion and then after 2020 Washington will cover 90 percent of the costs. That's a greater percentage than the current contributions from the federal treasury.
After Wednesday's arguments the justices are expected to take the next three months to write their opinions.
"I think they wish they weren't in the political eye of the storm," Chapman University Law Prof. John Eastman said in a phone interview. "(But) now that they are, they are going to do their job as in any other case."
How Did We Get Here?
The case, for all the reams of judicial decisions and court filings, started with a seemingly simple concept -- that insurance companies should cover more people, for more ailments and reduce the costs associated with health care.
Key features of the controversial law include provisions designed to force insurance companies to extend what is called "minimal essential coverage" to all Americans -- regardless of past medical histories -- and to charge premiums on a more equal basis to all customers.
To balance those enormous additional costs (an estimated 30 percent increase in premiums) Congress added a provision, known as the individual mandate, forcing everyone to obtain private or government-administered insurance, thus increasing the amount of people paying into the system. Some smaller aspects of the law have already taken effect while the mandate is scheduled to start in 2014.
Political wrangling over the details of the bill played out for months after the president's inauguration and into 2010. The biggest drama was in the Senate, where controversial provisions were added to entice (opponents of the law would say bribe) wavering lawmakers to vote for the law. Debate was eventually halted without a vote to spare, thus allowing the chamber to pass the measure.
But before the Senate bill could be combined with the different House proposal, a special election in Massachusetts put Republican Scott Brown into office. Brown won largely because of his stand against the law and took away the key vote Democratic leaders needed to easily get the law to the president's desk. Brown's election also set the stage for huge Republican victories later in 2010. Eventually, the House bill was abandoned and through various parliamentary maneuvers, also controversial, the bill passed both bodies and was sent to the White House for Obama's signature.
The legal challenges to what's derisively called "ObamaCare" were filed just hours after it became law. Dozens of lawsuits have worked their way through the federal courts to become the four cases now pending before the Supreme Court.
While flower shop owner John Nicholson hopes the law is struck down, a final resolution from the high court is what he really wants.
"I hope they make a decision yea or nay, I don't care which way, but get it resolved so we can then have this country get back to a little bit more cheerful attitude because that's going to help my sales. And that's really my bottom line," he said.