Thursday, November 23, 2017

Health care decision's broad sweep

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WASHINGTON — In reviewing President Obama's health care overhaul, the 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.

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 Yale Law School professor and author of 15 books, including The Decline and Fall of the American Republic. "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.

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 signing the measure.

Republican presidential candidates, including former Massachusetts Gov. Mitt Romney and former Sen. Rick Santorum of Pennsylvania, are campaigning against the health care measure, saying it should be repealed.

"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. vs. 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 speechwriter for President Bill Clinton and author of Supreme Power: Franklin Roosevelt vs. The Supreme Court.

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

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