Tag Archives: health care law

Obama: Striking health care law would be ‘judicial activism’

One week after the U.S. Supreme Court opened oral arguments in the federal challenge to the federal health care law, President Barack Obama expressed confidence that the law would be upheld. Striking the law down, the president warned, would be an act of judicial activism.

“Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,” Obama said during a news conference Monday.  “And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint – that an unelected group of people would somehow overturn a duly constituted and passed law.  Well, this is a good example.  And I’m pretty confident that this Court will recognize that and not take that step.”

Obama stressed that the individual mandate at the heart of the constitutional challenge is a crucial element of the law.

“I think it’s important, and I think the American people understand, and I think the justices should understand, that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care,” Obama said.  “So there’s not only a economic element to this, and a legal element to this, but there’s a human element to this.  And I hope that’s not forgotten in this political debate.”

Health Care Arguments, Day 2: The scene

The scene today outside of the Supreme Court was much more dramatic, as it was inside the courtroom as the justices grilled attorneys on both sides of the constitutional challenge to the federal health care law’s individual mandate about the limits of congressional power.

Justice Antonin Scalia expressed strong doubts about the law’s constitutionality, presumably joining justice Clarence Thomas – who has expressed views outside of the courtroom about the strict limits of the Commerce Clause power – in likely voting against the law. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan seem to be in favor of upholding the law.

That means the votes of Chief Justice John G. Roberts and Justice Anthony Kennedy and Samuel Alito could still be in play – though Alito asked far fewer questions of the attorneys for the parties challenging the law’s constitutionality.

Outside the courthouse there were many more protesters than yesterday, with members of the Tea Party and other opponents of the law trying to out-shout the law’s supporters.

More to come on the substance of today’s oral arguments on Lawyers USA online.

Lawmakers want Supreme Court health care arguments televised

Lawmakers from both parties are urging the U.S. Supreme Court to allow video coverage of oral arguments in the cases challenging the constitutionality of the federal health care overhaul next spring.

Tuesday, Sen. Chuck Grassley, R-Iowa, sent a letter to Chief Justice John G. Roberts and the associate justices urging them to make an exception to the rule barring cameras in the courtroom for the health care case.

“The decision in this case has the potential to reach every American,” Grassley said in the letter.  “The law is massive in size and scope.  The effect of the law, and the Court’s decision, will reverberate throughout the American economy. …A minimal number of cameras in the courtroom, which could be placed to be barely noticeable to all participants, would provide live coverage of what may be one of the most historic and important arguments of our time.  Letting the world watch would bolster public confidence in our judicial system and in the decisions of the Court.”

Yesterday, House Democratic Leader Nancy Pelosi, D-Calif., echoed Grassley’s call.

“When the Affordable Care Act is placed before the highest court in our country, all Americans will have a stake in the debate; therefore, all Americans should have access to it,” Pelosi said in a statement. “Openness and transparency are essential to the success of our democracy, and in this historic debate, we must ensure the ability of our citizens to take part.”

Earlier this year Grassley, ranking member on the Senate Judiciary Committee, introduced legislation that would give chief judges in federal trial and appellate courts the right to decide whether cameras would be allowed in court proceedings. The committee advanced the bill in April.

Stevens defends Thomas

Retired Justice John Paul Stevens defended his former Supreme Court colleague Justice Clarence Thomas, who is under fire from some members of Congress who want Tomas investigated on conflict-of-interest charges.

Some lawmakers have called on Thomas to recuse himself from the health care constitutional challenge, and some have also asked the Justice Department to investigate whether Thomas violated ethics rules when he failed to disclose his wife’s income from conservative and Tea Party- related organizations on his financial disclosures.

But Stevens said he does not believe Thomas’s wife’s activities nor the financial disclosure omissions have any effect on the way Thomas deliberates.

“I … don’t think there’s a chance in the world that it will affect his vote,” Stevens told USA Today’s Joan Biskupic. “That is one vote that you really can predict.”

But Stevens also said of the Thomases: “You can’t help but wish that they had a lower profile.”

Rep. Weiner Twitter blasts Justice Thomas over pre-holiday disclosure (access required)

The simmering controversy over Supreme Court Justice Clarence Thomas’ financial filings and the financial interests of his wife, Virginia “Ginni” Thomas, heated up over the Memorial Day holiday weekend.

It began when Thomas publicly released his financial disclosure filing on Friday afternoon. That move irked Rep. Anthony Weiner, who has has been pushing Thomas to recuse himself from considering the constitutionality of the health care reform law based on Thomas’ wife’s Tea Party group affiliations.

Weiner was not happy that Thomas chose the eve of a long holiday weekend to release the disclosure, which showed that his wife received a salary from Liberty Central, a group she co-founded to support the repeal of the health care law.

Weiner took to Twitter to express that displeasure.

“Pretty crazy that the Scotus does a pre memorial day friday dumping of its financial disclosure forms. #ButImOnTheCase,” Weiner’s Twitter rant began. “#ConflictedClarenceThomas dumps his conflicts forms on friday before memorial day. #AhFreshAir. For the first time #ConflictedClarenceThomas admits his spouse works for tea party org. Spouse of #ConflictedClarenceThomas has every right to work for whomever, but he must recuse himself.”

UPDATE: We are assuming these Tweets were sent by Weiner and not a hacker.

Boehner no fan of trial lawyers, unless he’s hiring them (access required)


In his political messages, House Speaker John Boehner hasn’t shown a lot of love to trial lawyers. Boehner has perennially joined his Republican colleagues in supporting tort reform measures they say will “rein in junk lawsuits.”

Yet in practice, Boehner seems to be a big fan of litigation according to a report by Politico. Boehner has used the court system as an essential tool in a number of political battles over his career, and two of those battles are primed to land before the Supreme Court.

As readers know, Boehner spearheaded the effort of House Republicans to defend the constitutionality of the Defense of Marriage Act in federal court after the Obama administration announced that the Department of Justice would no longer do so. Boehner hired outside lawyers to handle the defense (which led to another high-profile legal battle). He then asked for the Justice Department to pay the legal bill.

Boehner also filed legal briefs in the Florida lawsuit challenging constitutionality of last year’s health reform law. Both the health care law challenge and the DOMA case are expected to go to the Supreme Court within the next couple of years.

Boehner has long showed a willingness to take political battles to court – and an ability to win. Following an ethics investigation into then-Speaker Newt Gingrich, Boehner successfully sued Democratic Rep. Jim McDermott and won a $1.2 million judgment.

Supporters say Boehner is simply ensuring proper constitutional procedure.

“He takes very seriously his role under the Constitution and the need to assure that the checks and balances work properly,” Carrie Severino of the Judicial Crisis Network, which filed the health care challenge on Boehner’s behalf, told Politico. “He is making the point that the constitutional limits were exceeded. That’s why we have judicial review.”

A top Democratic staffer stopped short of labeling Boehner’s legal battles hypocritical – noting that “members of Congress have a duty to evaluate the constitutionality of laws that they pass.” Still, the staffer said, “people complain only when their ox is being gored.”

As SG, Kagan shielded from health care discussions (access required)

Even before she was nominated to the U.S. Supreme Court, then-Solicitor General Elena Kagan was largely shielded from discussions about the health care law and how to defend it, according to the National Law Journal’s Tony Mauro.

Based on internal emails obtained by conservative news site CNSNews.com through a Freedom of Information Act request, the glimpse into the inner workings of Kagan’s solicitor general’s office gives the strongest indication yet that Kagan plans to remain on the bench when the constitutional challenge to the health care law reaches the Supreme Court.

According to the emails, during Kagan’s tenure, now Acting Solicitor General Neal Katyal was the point person in discussions about the health care law, which is now being challenged as violative of the Commerce Clause.

According to the documents, on March 21, 2010 – about two weeks before Justice John Paul Stevens announced his retirement, and nearly two months before Kagan was nominated to fill his seat – Associate Attorney General Thomas Perrelli sent an email inviting Justice Department lawyers to a meeting to discuss defense of the health care law.

Katyal forwarded the email to Kagan, adding: “I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.”

Kagan’s reply: “What’s your phone number?”

From that point on, Mauro reports, Katyal was the lead person from the SG’s office on the issue of the health care law and its defense.

In May 2010, after Kagan’s nomination, Tracy Schmaler, a Justice Department spokeswoman emailed Katyal asking about  Kagan’s involvement on the health care issue.

“No, she has never been involved in any of it,” Katyal replied. “I’ve run it for the office, and have never discussed the issues with her one bit.”

Katyal forwarded that note to Kagan, who replied to all, “This needs to be coordinated. Tracy, you should not say anything about this before talking to me.”

Va. AG wants fast health care law review, Hatch wants Kagan to recuse (access required)

Virginia’s attorney general said Thursday that he would ask the U.S. Supreme Court for direct review of the Virginia federal court ruling invalidating part of the health care overhaul that became law last year.

Attorney General Kenneth T. Cuccinelli said he would seek to bypass the 4th Circuit Court of Appeals and go directly to the nation’s highest court because the uncertainty over whether Congress had the authority to mandate health care coverage required fast resolution.

“Currently, state governments and private businesses are being forced to expend enormous amounts of resources to prepare to implement a law that in the end may be declared unconstitutional,” Mr. Cuccinelli said according to The New York Times.

Two federal courts have upheld the law, while courts in Virginia and Florida struck down the individual mandate as violative of the Constitution’s Commerce Clause. The Florida Court declared the entire law invalid.

Meanwhile, Utah GOP Sen. Orrin Hatch said Justice Elena Kagan should recuse herself when the challenge to the law reaches the Supreme Court. And he said, that move could create a 4-4 tie among the justices.

“I think that Kagan, who was the solicitor general at the time this was all done, probably should recuse herself, which means it might not be resolved by the Supreme Court,” Hatch said Wednesday evening on Fox News, The Hill reports. “That means the lower court decision will be the acting law.”

In battle over health care law, focus on Supreme Court (access required)

The legal challenges to the health care law overhaul signed into law last year haven’t even made it to the federal appeals courts yet, but already lawmakers are already focused on where the cases are headed: the U.S. Supreme Court.

As members of the Senate prepare to vote on a measure that would repeal the law – which is expected to fail – lawmakers are also opining on how the justices should rule on the challenge to the law’s constitutionality.

“I would hope the four so-called liberals on the court would recognize that personal liberty is involved here,” said Utah GOP Sen. Orrin Hatch according to The Hill. “I think there are some very good Democrats there on the Court, or I should say more liberal people on the Court, who have to recognize these constitutional issues.”

Iowa Democrat and Health, Education, Labor and Pensions Committee chairman Sen. Tom Harkin focused on another justice.

“[Justice Antonin] Scalia, interestingly enough, has argued for years that barring any overly gross action by Congress, the court should let the Congress make its laws and if people don’t like them, let them decide at the ballot box,” Harkin told The Hill. “So it will be interesting to see how Scalia goes about this.”

But everyone involved in or watching the ongoing debate are aware that the vote on the health care law cold come down to one jurist. As lawyer and a former congressman Joe Scarborough of MSNBC put it, according to USA Today‘s The Oval blog: “It’s going to come down to Anthony Kennedy.”