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Handicapping the High Court on health care

Many Twin Cities attorneys spent the three days of oral arguments parsing every nuance of each word spoken.

Last week’s oral arguments for and against the Affordable Care Act constituted a “legal Woodstock.”

Not since 2000’s Bush v. Gore has so much attention been focused on the U.S. Supreme Court at one time, nor so many learned brains engaged in forecasting its eventual decision. Indeed, in the words of one radio commentator last week’s oral arguments for and against the Affordable Care Act constituted a “legal Woodstock.”

Given the universal nature of the health-care reform, it makes sense that a number of the prognosticators practice here, in Minnesota. And yet when MinnPost set out to do some educated handicapping, we were surprised how many Twin Cities attorneys spent the three days the case was before the court parsing every nuance of each word spoken — and how little consensus they arrived at.

Professors at all four local law schools with a variety of specialties burned midnight oil, reading daily transcripts so as to discuss the case in real time with students. One of the scholars we contacted sent a 1,300-word analysis — from Turkey.

Virtually every large, local law firm represents an insurer, provider or agency that has a stake in the outcome; in fact, the majority of those we contacted begged off, citing the issue’s sensitivity for their practices.

Daily briefings at Faegre

Aaron VanOortfaegrebd.comAaron Van Oort

The exception, Faegre Baker Daniels, supplied two members of a team that monitored the arguments and provided daily briefings to their colleagues. Before joining the firm one of them, Aaron Van Oort, clerked at the U.S. Supreme Court for Justice Antonin Scalia and at for the chief judge of the U.S. Court of Appeals’ Seventh Circuit, the equally opinionated Richard Posner.

Former state Supreme Court Chief Justice Eric Magnuson and his law partner at Briggs and Morgan, Diane Bratvold, presented mock arguments on the case’s key issue, the “individual mandate” requiring all Americans to purchase health insurance, last Friday to the Minnesota State Bar Association’s Health Law Section.

(The American Bar Association, Magnuson noted, went so far as to prepare a 40-page overview of the questions raised by the case and the likely outcomes.)

First, the generalities: Like their counterparts elsewhere, virtually all of our eight court-watchers predicted that the four so-called liberal justices, Sonia Sotomayor, Elena Kagan, Stephen Breyer and Ruth Bader Ginsburg, will vote to uphold the law. Likewise, conservative justices Antonin Scalia, Clarence Thomas and Samuel Alito will vote to overturn it.

Which leaves Chief Justice John G. Roberts and Anthony Kennedy, also conservatives but more likely to depart from predictable positions, as swing votes. As chief, Roberts is likely more concerned with the high court’s credibility with the public than the associate justices. Plus, a number of our watchers noted, he has vowed to try to steer the court away from narrow decisions toward a supposed center.

Marshall Tanickmansfieldtanick.comMarshall Tanick

“Roberts has pledged more unanimity,” said Marshall Tanick, a Minneapolis attorney whose appellate work has reached the high court. “He doubtless recognizes that in a case like this a fractured verdict would hurt the court’s image.”

Heavy scrutiny on the mandate

There are four questions before the court, and while many of our prognosticators tackled all four the heavy scrutiny was reserved for the reform law’s controversial key provision, the so-called individual mandate requiring all Americans purchase health insurance.

Going in, many predicted the individual mandate will be upheld 6-3, with the conservative bloc in the minority. This is still what many of our observers are expecting, although most said they were impressed with how tough the jurists were on the attorneys representing the government.

“I think that the arguments have caused some to re-think those predictions, although I know from experience on both sides of the bench that argument questions serve so many purposes that it is very, very difficult to base accurate predictions regarding the outcome based on any specific question,” said Magnuson. “I have to say that I found the questions to evidence a much greater skepticism on the court’s part than the experts predicted.”

Mehmet Konar-Steenbergwmitchell.eduMehmet Konar-Steenberg

William Mitchell College of Law Professor Mehmet Konar-Steenberg, who teaches constitutional law, was of a similar opinion. “Trying to predict the outcome based on the questioning is an unrewarding task,” he said. “What looks like hostile questioning from a justice is often just an effort to find answers to fill in the blanks in a sympathetic opinion.

“To use one very pertinent example, in Bush v. Gore, Justice Kennedy sharply questioned aspects of candidate Bush’s argument,” Konar-Steenberg continued. “A few days later he effectively decided the election by casting the fifth vote for Bush.”

At the same time, others noted that the justices did as much speechifying as questioning. “A lot of pundits say you can’t tell,” said Tanick, “but when you get to that level, questions are generally a reflection of how they are going to rule.”

The most persuasive arguments

Van Oort, too, believes Kennedy is the likely swing vote and that his decision will hinge on whether the Commerce Clause gives government the power to require citizens to buy insurance. “The most persuasive argument raised by the government is that everyone will ultimately need health care, and because everyone will ultimately participate in that market, Congress may regulate the means of payment in that market in a way that make sense,” he noted.

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“The most persuasive argument raised by the 26 states challenging the mandate is that, although the Commerce Clause gives Congress the power to regulate existing commerce, it does not give Congress the far greater power to compel people to enter commerce, and that is what the Affordable Care Act does by making people buy insurance,” Van Oort continued.

“This latter argument was picked up by the holder of the likely swing vote, Justice Anthony Kennedy, who commented that, ‘Here the government is … tell[ing] the individual citizen that it must act, and that is different from what we have in previous cases, and that changes the relationship of the federal government to the individual in a very fundamental way.’ ”

The James L. Oberstar professor of law and public policy at the University of St. Thomas School of Law, Thomas Berg also heard Kennedy make statements both suggesting he would uphold and strike down the mandate.

“Running against the government is the fact that the five conservatives want to make clear there is some limit on the federal government’s power in both cases: requiring people to buy something, and pushing states by adding tough strings to federal funding,” he said. “The government had some difficulty articulating a clear limit in both cases.

“The best answer on the insurance requirement is that health care is unusual in that virtually everyone needs it sometime, society has taken on a duty not to refuse it to the needy, and if people wait until they’re sick to seek coverage the cost-shifting to others is immense. This makes health care very different from ‘broccoli’ ” — a reference to Scalia’s comment comparing the purchase of health insurance to buying the vegetable — “but the line is not a simple one — more of a combination of factors — and five justices may decide it’s not clear enough.”

Will Roberts follow Kennedy?

The next question, in the minds of many of those we consulted, is whether Roberts will follow Kennedy.

“On the insurance requirement, I wonder whether John Roberts, with his expressed goal of increasing consensus, will want to preside over a 5-4 decision effectively obliterating one of the most consequential congressional statutes in a long time, a law that aims to solve a serious, longstanding national economic problem,” said Berg. “The Court hasn’t done anything as aggressive as that under federalism principles since the early New Deal, before it backed away in 1937 from imposing controversial limits on congressional power to regulate interstate commerce. 

“If either Roberts or Kennedy develops cold feet about invalidating the mandate — and Kennedy signaled some reluctance at the end of oral argument — then I could see Roberts joining to try to create a six-person majority upholding the mandate on narrow grounds because of the nearly unique circumstances of health care,” Berg continued. 

A professor of public health law at Hamline University’s law school, Katrina Pagonis, agreed. “Health is unique,” she said. “Ensuring that everyone has access to care requires collective action. There are some things you can’t just go out and get for yourself in the woods.”

Indeed, Pagonis and several other observers agreed that one of the more artful moments of the three days came at the end of the closing argument Solicitor General Donald B. Verrilli Jr.  delivered in defense of the law, which seemed to be directed at Kennedy.

There is “a profound connection” between health care and liberty, Verrilli said: “There will be millions of people with chronic conditions like diabetes and heart disease and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty.”

Not ‘a Commerce Clause guy’

Kennedy’s decision, Pagonis opined, will likely influence Roberts. “Roberts values the politics of going with Kennedy,” she said, in part because “he has not come out as a Commerce Clause guy. … In a case as watched as this one, for someone who has not made the Commerce Clause a part of his jurisprudence, he will go whichever way the wind blows,” she said.

She agreed with Berg that an argument likely to sway Kennedy is that the court has largely stayed out of Congress’ attempts to regulate interstate commerce since the 1930s, when it acknowledged the political process as the primary check on government’s abuse of power in that arena.

William Mitchells’ Konar-Steenberg predicted that Thomas will strike on the same point, but will use it to write a solo opinion to invalidate the law. “Justice Thomas has made it clear that he would like to return to the interpretation of the Commerce Clause that the Court used in the period 1890 to about 1936, which is to say, the period leading up to the Great Depression,” he said.

“During that period, the court rejected many efforts by the federal government to regulate aspects of the economy,” Konar-Steenberg continued. “The doctrine during this period defined ‘commerce’ as being literally confined to buying and selling goods across state lines. Production of goods was excluded from the definition of commerce, because it was thought to be a local activity that comes before commerce, and not a part of commerce itself.

“So, for example, during this period the court invalidated a federal law banning the interstate transport in any goods made with child labor. The court reasoned that the law targeted production, not commerce. Justice Thomas has been clear in the past that he thinks these pre-New Deal production/commerce and local/interstate distinctions are correct, and I don’t expect that to change.”

5-4 decision to uphold predicted

Amy B. Monahanlaw.umn.eduAmy B. Monahan

Professor Amy B. Monahan researches employer-provided health care, health-insurance regulation and public and private retirement plans at the University of Minnesota Law School. She predicts a 5-4 decision to uphold.

“I think the statistics about the extent to which nearly every American accesses health care during their lives is going to have a big impact, as is the impact that uninsured individuals have on the ability of others to afford health insurance,” she said. “I also think the court will be significantly influenced by the fact that there is no viable method to regulate the financing of health care at the point of service.  

“While I think the government will prevail based on the argument outlined above regarding the health-care market, the court will also need to find some method of limiting the reach of the Commerce Clause,” Monahan continued. “Any justice that votes to uphold the mandate will also want to be able to specify what this holding means for Congress’ power.

“Is it now true that Congress has the power to force you to buy a cell phone or burial insurance, or is there something unique about health care that can help define a limit on the reach of the commerce clause? Everyone agrees that there has to be some limit, and the court will need to articulate what that limit is if it finds in favor of the mandate.”

Magnuson is not sure the arguments supplied the justices with a clear line. “I didn’t hear a good answer from the government to the questions regarding what limiting principle would control future use of the extensive power that Congress was claiming,” he said. “That will be the key, in my mind. If the Court can’t find a clear limit to the power claimed, then it will reject the claim.”

After the mandate decision

If the individual mandate falls, most of our observers predict a unanimous or nearly unanimous vote on the question of severability, whether the mandate can be separated from the rest of the law, and then a fractured vote on whether the law’s expansion of Medicaid is constitutional.

Regarding the last question — whether states can be forced to expand Medicaid coverage if the federal government funds it — Van Oort’s colleague at Feagre, employee benefits litigator Paul Heiring, was impressed by the attorney representing 26 states challenging the law, Paul Clement.

The ACA, Clement argued, “represents an unprecedented effort by Congress to compel individuals to enter commerce in order to better regulate commerce.” Among others, Justice Kagan suggested the argument was absurd, but the point seemed to resonate with Kennedy.

If the court reaches this last issue, several observers suggested, a fragmented vote is more likely than regarding the individual mandate.

“There’s also the significant possibility of two 5-4 decisions effectively eliminating the health care law,” said St. Thomas’ Berg. “If that happens, then for the first time in many decades, conservative judicial activism may become a prominent issue in an election campaign.”