Obamacare’s Fifth Time At The Supreme Court | But This Time, Things Are Different
December 11, 2019
THE OLE BAIT AND SWITCH
|Obamacare was once again at the Supreme Court yesterday, but this time, things were a bit different. As Nina Totenberg with NPR points out, “This time the justices cast their skeptical gaze on Republican efforts to hobble the law.” Totenberg explains the history of the case, which starts back when the ACA was first enacted in 2010 with the promise that the government would partially reimburse insurers if they lost money by covering people with preexisting conditions. Totenberg writes, “But in 2015, Republicans, by then in control of both houses of Congress, attached riders to appropriations bills barring the use of the money for the promised payments. The consequences were profound. By 2017 three-quarters of the original insurance providers were out of business, and several others stopped participating, leaving just six insurance providers and skyrocketing costs. The insurers went to court, contending the government had cheated them of $12 billion in promised payments.”
LUCK BE A LADY TONIGHT
|Robert Barnes with The Washington Post notes that this is Obamacare’s fifth rodeo at the Supreme Court, and it was PAUL CLEMENT’S second time appearing before justices regarding the healthcare legislation. He had previously argued unsuccessfully in 2012 that the Affordable Care Act was unconstitutional, but this time he was back to claim that under the law, his insurer clients were owed billions of dollars. Barnes remarks, “It appeared he might have more luck this time.”
IT'S SIMPLE REALLY
|“JUSTICE SAMUEL A. ALITO JR. was the only member of the court who asked questions consistently supportive of the government’s position,” Adam Liptak with The New York Times reports. The rest of the justices showed varying degrees of concern over the “bait and switch.” CHIEF JUSTICE JOHN ROBERTS pressed advocates on both sides of the case, at one point characterizing PAUL CLEMENT’S argument on behalf of the insurance agencies as, “They were basically seduced into this program.” And for JUSTICE STEPHEN BREYER, this case is downright simple. He said it reminded him of his first day of his contracts law class. “I say to you: ‘My hat’s on the flagpole. If you bring it down, I’ll pay you $10,’ You bring it down. I owe you $10. Now how does this differ?”
SCOTUS VIEWS
Supreme Court Faces Republican Pressure To Be Activist And Scrap Obamacare. How Ironic.
NBC News“It’s not the Supreme Court’s job to give Republicans the laws they couldn’t pass in the legislature. But in the case before the court Tuesday, the Trump administration implies that it is, as the administration is asking the court to peel back some of the most significant provisions of the Affordable Care Act after Congress failed to dismantle the law. The case, and another, potentially more far-reaching one at the appellate level, will reveal whether the Republican-controlled court is nonetheless willing to perform that role.”
The Supreme Court Majority Should Resist The Temptation To Expand The Second Amendment
The Washington Post“Originalists should reject the temptation to push for a ruling on the Second Amendment many of them would celebrate and focus instead on a larger constitutional priority: the limitation of the judiciary to ‘cases and controversies.’ The scope of judicial power is a far more fundamental question than the scope of a single constitutional provision.”
OTHER NEWS
DOJ Urges High Court To Hear Religious Accommodation Case
Bloomberg Law“The U.S. Supreme Court should hear a workplace dispute between Walgreen Co. and the Seventh-day Adventist Church to refine the legal test for what employers must do to accommodate the religious practices of workers, the solicitor general’s office said. Employers have to accommodate their workers’ religious practices unless that would cause an ‘undue hardship.’ But the current definition of undue hardship from the high court’s 1977 ruling in TWA v. Hardison—’more than de minimis harm’—sets the bar too low, the SG’s office said in a Dec. 9 brief.”
No Defense Department Money For Border Wall, Court Orders
The Wall Street Journal“A federal judge in Texas has blocked the Trump administration from using billions of dollars in funding from the Defense Department to pay for construction of a long-promised wall on the Mexican border. U.S. District Judge David Briones issued an injunction Tuesday blocking the federal government from using $3.6 billion previously earmarked for about 127 military construction projects to fund the wall, as President Trump ordered under an emergency declaration earlier this year. Judge Briones said the administration can only use $1.375 billion approved by Congress for the 2019 budget year for the wall.”