Bad Signs from the Supreme Court for Health Law Says Bob Weiner, Former House Aging Comm. & Health Subcomm. Director, National Democratic Strategist

Mar 26, 2012, 05:00 ET from Robert Weiner Associates

WASHINGTON, March 26, 2012 /PRNewswire-USNewswire/ -- Is there hope for the Health Bill (The Affordable Care Act) in the Supreme Court?  There are bad signs from the Court as it begins debate today, say Robert Weiner, former Chief of Staff of the House Aging Committee and Health Subcommittee, former senior White House spokesman, and national Democratic strategist; and Richard Mann, senior policy analyst at Robert Weiner Associates.

Weiner and Mann assert, "Conservatives have made national health care a partisan issue because it was such a signal accomplishment by President Obama.  An overriding national need for health care can be determined as part of the Constitution's 'general welfare' clause and Congress' right to legislate funding."

Weiner and Mann continue, "Most of the conservative bloc — Chief Justice John Roberts, and Justices Samuel Alito, Antonin Scalia and Clarence Thomas — could be called 'spoken for.' Justice Thomas' wife emailed congressional chiefs of staff that she is 'an ambassador to the Tea Party movement,' which opposes the health care law. Instead of disclosing his wife's earnings from conservative groups, including one she heads, Justice Thomas checked 'none' on the court's forms. The Code of Conduct for U.S. Judges says they 'should not personally participate in public fund-raising activities,' but in 2009 he was featured at a Heritage Foundation fund-raiser."

"Then there is Kennedy. Anthony Kennedy has taken over the role of 'swing vote' since Sandra Day O'Connor retired in 2005, but it has become increasingly common for Justice Kennedy to side with the court's right." Weiner and Mann quote CNN's legal analyst, Jeffrey Toobin: 'The court is more polarized than it's been in easily a generation. We are looking forward toward years of 5-4 rulings.'"

At a National Press Club forum last month on the health law's constitutionality, Virginia Attorney General Ken Cuccinelli and Massachusetts AG Martha Coakley debated from opposite substantive positions.  Yet Cuccinelli conceded that the justices' "world views" as "political appointees" will "be brought in." 

Weiner and Mann stated today, "We hope this is not a case where rich guys in robes with Federal health insurance themselves have no clue about poor and average people who need and many would not have adequate health insurance without the bill.  It took generations for Congress to pass this hard-fought legislation.  Compromises were made with the minority (despite their rhetoric to the contrary) including 160 business tax breaks they suggested plus the private sector insurance vehicle instead of 'single payer', and now that it is enacted, the process is entitled to achieve its goal."

The Obama administration has decided to appeal directly to the Supreme Court the Affordable Care Act challenge by Republican attorneys general from 25 states and one Democrat. However, according to Weiner and Mann, "Support for the bill is unlikely with this politically appointed court."

They explain, "In August, a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta ruled the individual mandate unconstitutional but allowed the rest of the law to stand. The ruling differed from a January decision by U.S. District Judge Roger Vinson, who, ruling in the case brought by Florida, said that 'because the individual mandate is unconstitutional and not severable, the entire Act must be declared void.' Other courts have supported the bill outright."

"The Supreme Court may rule as early as June, in the middle of the presidential election."

"The whole law is at stake. Striking down all or part of it would take benefits away from people, but far more is at risk with a total overturn," Weiner and Mann contend. "Without the mandate, the law could continue to cover citizens with pre-existing conditions, allow children to stay on their parents' insurance until age 26, block lifetime benefit caps and expand Medicaid."

"Howard Dean, a physician and former Democratic Chairman, has said that the mandate is only 4 percent of the law." Weiner and Mann added, "While the mandate helps pay for the other provisions, the health insurance companies are making hundreds of billions in profit, continually increase premiums anyway, and can and should absorb the cost of actually providing health care."

"It is hard to imagine the Court denying the Congress' right to assist people with specific benefits related to Commerce as it has done since the creation of the Republic.  As Mass. AG Coakley pointed out at the National Press Club, essentially everyone uses health care-- 99% of Americans are born in hospitals, and most receive health care in their aging years, let alone care between."

"It is also hard to imagine the Court blocking Congress' provision of benefits already underway:

  • Children's care through age 26 (2 1/2 million have already received);
  • Cheaper and then free drugs for 45 million seniors
  • Pre-existing conditions coverage
  • No lifetime caps
  • No being thrown off if sick;
  • Free prevention including mammograms and colonoscopies
  • Oversee insurance companies' premiums and assure 85% go to people's benefits
  • Save $200 billion hospital costs from previously uninsured people formerly costing all premium-payers $1000 --  the lack of insurance made  millions die sooner;
  • All these actions to counter America being worse than 40th in life expectancy and infant mortality and NOT having the best health care in the world but paying twice as much as other countries.
  • On cost, the Act saves $200 billion this decade, and a Trillion dollars next decade, according to CBO – and opponents fail to acknowledge that premiums will rise far less."

"To show a case in point, in Florida alone: The ban on lifetime benefit caps means that 8.8 million residents never have to worry about coverage running out. More than 86,000 children are now covered on parents' insurance. The law provides $351 million for uninsured Floridians with pre-existing conditions and expands the solvency by nine years of Medicare, which covers more than 3 million Floridians."

The authors say that "the Administration seems oddly confident that the Supreme Court will take its side on the mandate and the rest of the law. Don't bet the farm."

They point to the Justice Department's statement that "there have been similar challenges to other landmark legislation, such as the Social Security Act, the Civil Rights Act and the Voting Rights Act, and all of those challenges failed," and the Department's assertion, "We believe the challenges to the Affordable Care Act will also ultimately fail and that the Supreme Court will uphold the law."

The hypocrisy of opponents to the "mandate" is astounding when they now support new Republican state laws from a national push forcing women to undergo transvaginal ultrasound procedures before medical choices, saying women could just "not look" even though the screen must be in their face, and then – as Doonesbury said in his column this week—the "Final Indignity"—making them pay "your bill" for this unnecessary procedure they in no way wanted.  If that isn't a mandate, what is?

While doubtful, Weiner and Mann clearly hope the Justice Department is right.  They conclude, "America is the land of opportunity. Will anyone be able to say that if conservatives on the Supreme Court deny citizens the opportunity to receive health care?"

Robert Weiner was a White House spokesman and chief of staff for the House Aging Committee and Health Subcommittee under Rep. Claude Pepper, D-Fla. Richard Mann is a senior policy analyst at Robert Weiner Associates.

Link to Weiner and Mann's oped in Palm Beach Post:

Other opeds by Robert Weiner:

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Contact: Bob Weiner/Richard Mann 301-283-0821 or 202-306-1200





SOURCE Robert Weiner Associates