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Preview: The ‘Very Big Deal’

In just over 5 weeks, the Supreme Court will hear challenges and defenses of the 2010 Affordable Care Act – the federal health law. In part one of two conversations about the case, Jackie Judd talks with Stuart Taylor, an attorney and contributing editor for the National Journal, about why these cases are so significant. Taylor says it’s been 56 years since the court has spent so much time hearing cases on a single law. There are tens of thousands of pages of briefs on the law’s requirements that individuals buy health insurance or pay a fine and that Medicaid expand to cover millions of uninsured Americans.

>> The Supreme Court Decides: Health Law At The High Court


JACKIE JUDD: Good day, I’m Jackie Judd. In March, just two years after President Obama signed into law the most sweeping social legislation in decades, the Supreme Court will enter the fray. The Justices will hear cases challenging the constitutionality of the Affordable Care Act – the health care overhaul law. Stuart Taylor, a contributing editor for the National Journal on legal matters – joins us to discuss what’s at stake. Welcome, Stuart.

STUART TAYLOR: Nice to be with you, Jackie.

JACKIE JUDD: Put these cases in some historical context. How big a deal are they?

STUART TAYLOR: Very big. Very big. For example, justices have scheduled 5 ½ hours of oral argument …

JACKIE JUDD: Over three days.

STUART TAYLOR: … over three days. It looks like it’s going to be six, because the government has requested more time. It’s been 56 years since they’ve argued as many as six hours on a single case and those were two historic cases in 1966: Miranda vs. Arizona and the Voting Rights Act case. They’ve cut back on their other cases, there are only half as many arguments in other cases for the rest of the term, or at least in April, as they usually do, clearly to leave themselves time for all the writing they’re going to be doing on this health care case. And then, there’s a huge influx of “friend of the court” briefs, probably on its way to being more than 100 — maybe an all-time record. And those are kind of just the outward indicia of the court clearing the decks for a huge case.

JACKIE JUDD: You have read some of those many, many briefs, including of course what the federal government filed, what the states are filing. Does some of the language match the kind of historic moment that this is?

STUART TAYLOR: Yes, especially coming from the opponents of the law, the states and the other opponents, which say, “What the government is trying to do here is it would be a revolutionary expansion of federal power over the states, a historic attack on the sovereignty of the states, an expansion beyond even the very broad federal powers that have been recognized in the past and way beyond anything the framers intended.” The government, more or less, pooh-poohs these things, and counters with a huge crisis in national health care and this is the way the government has decided to fix it. Now, the government doesn’t sort of predict doom and gloom if it’s struck down, they’re measured. But, a lot of others who support the law are afraid that a government – that a court – decision striking down this law could pave the way for a series of decisions striking down a whole bunch of federal laws since the New Deal. There’s one Justice on the court who’d like to do that, Justice Thomas, I don’t know that there are any others.

JACKIE JUDD:  So we will talk about the mandate, the expansion of Medicaid, but for the moment, the larger issue here is the role the government plays in individual’s lives.  And it may impact, not only the Affordable Care Act, but other legislation down the road?

STUART TAYLOR:  That’s for sure.  For the opponents of the law say that if the government can do this, it could require everyone who can afford it to buy a Ford to help the national economy.  It could require people to join health clubs or to buy broccoli in order to become healthier.  Now nobody seriously says that you could be required to eat broccoli, but you could be required to buy it.  And so there are all sorts of scenarios of “if the government can do this, it can do anything; its power is unlimited.”  The government, on the other hand, says this is a unique case.  We’re using judicious powers to address a unique national health crisis and therefore it doesn’t pave the way to any great expansion. 

JACKIE JUDD:  At the 10,000 foot level, walk us through the issues related to the individual mandate and to the expansion of Medicaid.

STUART TAYLOR: The individual mandate is a requirement that you either buy insurance – if you don’t already have it from your employer – or pay a penalty.  And the big question there is does the federal government have the power to require people to buy a commercial product that they don’t want. And it’s never done that before- it’s clear Congress has never done that before. The question is whether it can do that.  And the other big issue is Medicaid, a huge Medicaid expansion that the states say – 26 states say – would cost them too much money and that they’re being coerced into it.  That they have no real choice but to go along and take what the federal government gives them and to spend more of their own money and that that invades state sovereignty. 

JACKIE JUDD:  And that’s the constitutional question?

STUART TAYLOR:  The constitutional question is whether it violates the 10th amendment rights of the states to sovereignty and independence from the federal government.

JACKIE JUDD:  Okay, we will go deeper on some of these questions about what’s at issue in these cases in our next interview.  For now, thank you very much, Stuart Taylor.

STUART TAYLOR: Thank you, Jackie.