Healthcare Case Evokes New Deal

Supreme Court's review of healthcare reform law take it into territory not approached since days of FDR.

In reviewing Barack Obama’s health care overhaul, the U.S. Supreme Court has pushed into territory it hasn’t approached since the days of Franklin D. Roosevelt: ruling on a president’s signature legislative victory in the midst of his re-election campaign.

Justices will take more time to hear arguments -- six hours over three days next week -- than for any other case in the last 44 years.

The court will determine whether the government can force millions of people to obtain insurance. The decision may influence the outcome of November’s presidential election. The potential legal impact has few parallels in the court’s history.

“This is a central challenge to the modern Constitution, which was fashioned during the New Deal and then elaborated further during the civil rights revolution,” said Bruce Ackerman, a professor at Yale Law School in New Haven, Connecticut and author of “The Decline and Fall of the American Republic” and 14 other books. “This goes to the very foundations of modern American government.”

Challengers to the health law, which Obama signed in 2010, include a group of 26 states, led by Florida. They are opposing both the requirement that Americans either obtain insurance or pay a penalty, and the law’s expansion of Medicaid, the federal-state health-care program for the poor.

Paul Clement, a Washington lawyer who served as a solicitor general under George W. Bush, will argue on behalf of the states challenging the law. Current Solicitor General Donald Verrilli will lead the defense of the measure.

The law will expand health coverage to an estimated 32 million Americans who lack insurance by 2016, according to the Congressional Budget Office. Obama spent a year pushing it through Congress. Democrats described the law’s passage as comparable to the creation of Social Security and Medicare for the elderly and disabled.

“Today, after almost a century of trying, today after over a year of debate, today after all the votes have been tallied, health insurance reform becomes law in the United States of America,” Obama said in March 2010 before putting his signature on the measure.

Republican presidential candidates, including former Massachusetts Governor Mitt Romney and former U.S. Senator Rick Santorum of Pennsylvania, are campaigning against the health-care measure, saying it should be repealed.


‘Exceptionally Important’

“This is an exceptionally important case in every dimension,” said Stephen Shapiro, a partner at Mayer Brown LLP in Chicago and co-author of a treatise on Supreme Court litigation. “At issue is the constitutionality of a major act of Congress affecting every person and every employer in the nation, with big economic consequences all around.”

The closest comparable election-year scenario was 76 years ago, involving Roosevelt’s New Deal, a series of social and economic programs adopted in response to the Great Depression. It wasn’t a single piece of legislation, as the health-care law is, and included the creation of Social Security.

The court struck down parts of the New Deal while leaving others intact. The biggest decision came in 1935, the year before Roosevelt’s re-election, when the court struck down much of the National Industrial Recovery Act. The measure allowed industries to create trade associations that set quotas and fixed prices.

In 1936, an election year, the Supreme Court backed Roosevelt on one part of the New Deal and rejected several others. In January, the court struck down the Agricultural Adjustment Act, which paid farmers not to plant on their land, as a way to increase the value of crops. The court heard the case, U.S. v. Butler, in December 1935 and issued its decision the next month, 10 months before the election.

Roosevelt didn’t campaign against the court for its anti-New Deal decisions, said Jeff Shesol, a former speech writer for President Clinton and author of “Supreme Power: Franklin Roosevelt vs. The Supreme Court.”

After winning re-election with about 61 percent of the vote, Roosevelt unsuccessfully attempted to pack the court with as many as six additional justices who would be more sympathetic to his programs.

A decision in the health-care case will probably come in late June, about 4 months before the November elections. The outcome will provide campaign fodder for Obama or his Republican challengers.

The health-care case also is unusual because of the length of time the justices have scheduled to hear arguments from March 26 to 28.

The most recent arguments that lasted at least as long were in December, 1967, said Jerry Goldman, a professor at the Chicago-Kent College of Law and director of the Oyez Project, a multimedia archive devoted to the Supreme Court.

That year, the justices consolidated 14 cases over natural gas rate regulation into eight hours of arguments.

Other more widely known cases from the 1960s -- landmark decisions upholding the Voting Rights Act and requiring that police warn criminal suspects of their rights -- featured arguments that went on for almost as long, or longer, than is scheduled for health care.

The justices heard about 7 1/2 hours of arguments in South Carolina v. Katzenbach, the 1966 case challenging the voting rights measure, which outlawed racial discrimination.

The same year, the court heard nearly six hours of arguments in Miranda v. Arizona, which resulted in the mandate that police tell criminal suspects their rights upon arrest.


No Argument Limits

In its early years, the court didn’t put time limits on arguments and they sometimes stretched for days, said James O’Hara, a retired professor at Loyola University Maryland in Baltimore and trustee of the Supreme Court Historical Society.

As its docket grew, the court began imposing limits. It went from two hours for each side in 1849, to an hour in 1925 and then to half an hour in 1970, said Shapiro

The justices have made exceptions for complex and groundbreaking cases.

Eight and a half hours of arguments were heard in 1952 for the Brown v. Board of Education school desegregation case and six and a half more when it was re-argued the next year, said Timothy Johnson, a political science professor at the University of Minnesota in Minneapolis. A follow-up case on how to implement the decision took up more than 13 hours over three days in 1955, he said.

The time devoted to arguments in the health-care case indicates they see “major constitutional issues” that need to be argued, O’Hara said. “This is extraordinary really that this amount of time would be allotted.”

Argument length alone doesn’t measure a case’s significance, said Mark Tushnet, a legal historian at Harvard Law School in Cambridge, Massachusetts.

The court heard 90 minutes of argument in 2000 when the court resolved the deadlock over vote counting in Florida, ensuring George W. Bush’s victory over Al Gore.

The justices allotted three hours for its 1974 consideration of whether President Richard Nixon had to turn over audio tapes to Congress during the Watergate investigation. Nixon resigned soon after the court’s 8-0 ruling requiring him to release the tapes.

The political implications of the health care case are “much more ambiguous” than when the justices directly decided the fate of a president, Tushnet said.

“Any result could aid Obama or aid Romney or whoever the Republican candidate is,” he said.



Bloomberg News


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