Prior to ACA hearings, both sides take aim
Both sides take aim as Supreme Court battle over ACA looms
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The circus-like atmosphere about to take over Washington during the U.S. Supreme Court’s consideration of the Patient Protection and Affordable Care Act got an early start last week as Democrats touted the law and Republicans continued to break it apart.
In the days leading up to the law’s second anniversary, Democrats in Congress and the administration highlighted its provisions in daily news conferences, news releases, an Obama campaign video and a new report from HHS about increased insurance coverage for young-adult Americans. The Republican-controlled House of Representatives, meanwhile, voted to repeal the Independent Payment Advisory Board the law created (See story, p. 8) as part of the Republican majority’s continued effort to eliminate the law.
“The White House has good reason to ignore this anniversary, but hardworking taxpayers can’t avoid Obama care, which is raising costs, jeopardizing coverage and making it harder for small businesses to hire new workers,” House Speaker John Boehner (R-ohio) said in a statement last week.
Meanwhile, HHS Secretary Kathleen Sebelius and U.S. Surgeon General Regina Benjamin promoted the Affordable Care Act in visits across the country last week on behalf of the administration. President Barack Obama did not do the same for a landmark piece of legislation that many consider to be his signature domestic achievement. In an e-mail, a White House spokesman referred Modern Healthcare to a transcript of remarks from White House Press Secretary Jay Carney in which Carney said the administration is focused on the law’s implementation.
Starting Monday, the controversy surrounding the Affordable Care Act will turn up a notch as the nation’s highest court will begin to examine the law’s constitutionality. The line of questioning pursued by the Supreme Court justices may give some indication, within limits, of their ultimate ruling in the case.
Neal Katyal, former acting solicitor general who argued all of the government’s cases leading up to the high court and is now a partner at Hogan Lovells in Washington, urged caution in extrapolating outcomes from the questions.
However, observers should note whether the justices move into policy areas or the “vast policy debate in this country about whether or not the Affordable Care Act is good legislation or not.” That is, whether the court is moving to second-guess Congress’ determination that the law is both necessary and solves the problem of about 50 million Americans lacking insurance.
“If there is a tolerance to accept those kinds of arguments then that’s going to be where the challengers are on stronger ground than on the pure constitutional plane,” Katyal said in an interview.
The last time the court challenged Congress on such a broad and important initiative was 1935, when it invalidated various aspects of the New Deal.
Jennifer Kraft, partner at Seyfarth Shaw, which filed a friend-of-the-court brief against the law on behalf of the National Restaurant Association, is looking for early indications as to whether the court would strike down the entire law if it finds the individual mandate unconstitutional. The law lacks a severability provision that is usually included in large bills that would allow the rest of the bill to remain if any one provision is struck down. An extended line of questions about the impact of the loss of the mandate on individual programs may indicate the justices are considering severability.