Supporters Slow to Grasp Health Law’s Legal Risks
By PETER BAKER
WASHINGTON — With the Supreme Court likely to render judgment on President Obama’s health care law this week, the White House and Congress find themselves in a position that many advocates of the legislation once considered almost unimaginable.
In passing the law two years ago, Democrats entertained little doubt that it was constitutional. The White House held a conference call to tell reporters that any legal challenge, as one Obama aide put it, “will eventually fail and shouldn’t be given too much credence in the press.”
Congress held no hearing on the plan’s constitutionality until nearly a year after it was signed into law. Representative Nancy Pelosi, then the House speaker, scoffed when a reporter asked what part of the Constitution empowered Congress to force Americans to buy health insurance. “Are you serious?” she asked with disdain. “Are you serious?”
Opponents of the health plan were indeed serious, and so was the Supreme Court, which devoted more time to hearing the case than to any other in decades. A White House that had assumed any challenge would fail now fears that a centerpiece of Mr. Obama’s presidency may be partly or completely overturned on a theory that it gave little credence. The miscalculation left the administration on the defensive as its legal strategy evolved over the last two years.
“It led to some people taking it too lightly,” said a Congressional lawyer who like others involved in drafting the law declined to be identified before the ruling. “It shouldn’t strike anybody as a close call,” the lawyer added, but “given where we are now, do I wish we had focused even more on this? I guess I would say yes.”
Looking back, Democrats said they had had every reason for confidence, given decades of Supreme Court precedents affirming Congress’s authority to regulate interstate commerce, and lawyers who defended the law said they had always taken the challenge seriously even if politicians had not. But they underestimated the chances that conservative judges might, in this view, radically reinterpret or discard those precedents.
Adversaries said the law’s proponents had been too attentive to liberal academics who shaped public discussion. “There’s very little diversity in the legal academy among law professors,” said Randy E. Barnett, a Georgetown University law professor and a leading thinker behind the challenge. “So they’re in an echo chamber listening to people who agree with them.”
David B. Rivkin Jr., who filed a challenge joined by 26 states, said that extended across party lines. “Nobody in Congress is interested in constitutional issues,” he said. “The Republicans on the Hill were no better than the Democrats. It really was very late in the game when Republicans realized there would be no policy deal and began to look at the constitutional issues.”
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Home > LI Confidential > Stop scratching on holidays
Stop scratching on holidays
Published: June 1, 2012
Off Track Betting in New York State has been racing into a crisis called shrinking revenue. Some people have spitballed a solution: Don’t close on holidays.
New York State Racing Law bars racing on Christmas, Easter and Palm Sunday, and the state has ruled OTBs can’t handle action on those days, even though they could easily broadcast races from out of state.
“You should be able to bet whenever you want,” said Jackson Leeds, a Nassau OTB employee who makes an occasional bet. He added some irrefutable logic: “How is the business going to make money if you’re not open to take people’s bets?”
Elias Tsekerides, president of the Federation of Hellenic Societies of Greater New York, said OTB is open on Greek Orthodox Easter and Palm Sunday.
“I don’t want discrimination,” Tsekerides said. “They close for the Catholics, but open for the Greek Orthodox? It’s either open for all or not open.”
OTB officials have said they lose millions by closing on Palm Sunday alone, with tracks such as Gulfstream, Santa Anita, Turf Paradise and Hawthorne running.
One option: OTBs could just stay open and face the consequences. New York City OTB did just that back in 2003. The handle was about $1.5 million – and OTB was fined $5,000.
Easy money.
Whether a different approach might have changed the outcome remains unclear. With the benefit of hindsight, some advocates said they would have been better off framing the law more explicitly as a tax, although doing so would have been politically explosive. Short of that, some said, strategy alternatives like slowing down the case still might not have made a difference.
And the Supreme Court may yet uphold the law, in which case the second-guessing in Washington will quickly transform into triumphant told-you-so’s. Ms. Pelosi, for one, has not retreated. “We’re ironclad on the constitutionality of the bill,” she told CBS this month. “I think we’ll be 6-3 in our favor.”
Democrats, and some Republicans, were so sure from the start because the concept of requiring Americans to obtain insurance or pay a penalty had originally been advanced by conservatives to avoid government-run health care. The Constitution authorizes Congress to regulate interstate commerce, but critics argued that rather than regulate activity, the law regulated inactivity — in other words, the choice of some Americans not to buy a commercial product.
Democrats who tried to warn their party of that risk were brushed off. When Michael Waldman, president of the Brennan Center for Justice at the New York University School of Law, wrote such an article in Newsweek in March 2009, a pair of law professors disputed him in print.
“It was so absurd a concept that the court would do this,” Mr. Waldman recalled. “Nobody thought it was unconstitutional until quite recently.” Even now, Mr. Waldman considers the law “plainly constitutional” based on decades of doctrine. “It’s just that you do have this increasingly activist court,” he said.
Thomas J. Perrelli, until recently the associate attorney general, said that the legal team had taken the case seriously and that anyone who had not was misguided. “You had to know this was going to the Supreme Court,” he said, “and it would be one of the most important cases of the decade.”
The issue came up briefly on the Senate floor when Democrats voted down a constitutional objection by Republicans after a detailed rebuttal by Senator Patrick J. Leahy of Vermont. Days before final passage, White House and Justice Department lawyers met to map out a defense. Some in the room recalled being acutely aware of the danger. The White House assigned a new associate deputy attorney general, Robert Weiner, to coordinate the effort.
The first lawsuits were filed the day Mr. Obama signed the plan in March 2010. By the end of January 2011, judges in Florida and Virginia had ruled it unconstitutional. Only then did the Senate and the House hold hearings on its constitutionality, and the administration grew worried.
“Once they lost one, two, three rulings, they had to take it more seriously,” said Michael Carvin, who represented the National Federation of Independent Business in challenging the law.
As cases moved to appeals courts, Neal Katyal, the acting solicitor general, personally took over rather than wait until they reached the Supreme Court. After some debate, he decided to speed up the process. The Department of Health and Human Services wanted the matter resolved to prepare for full implementation in 2014, and Mr. Katyal dropped procedural objections and asked for quick schedules.
He reformulated strategy, citing the Federalist Papers to argue that the founders saw the commerce clause as a broad tool when states could not solve problems. “The whole goal was to figure out how to talk to conservatives,” one person involved said.
Mr. Katyal also refined the argument to reject the notion that the law improperly forced Americans to buy something. Instead, he contended, it simply regulated how Americans paid for health care that they would invariably consume. Since the uninsured still need health care, he argued, the government has the power to force that it be paid for upfront.
The argument sold better in some courts than in others. Tough questioning from the United States Court of Appeals for the Sixth Circuit in Cincinnati led Mr. Katyal to call Attorney General Eric H. Holder Jr. to say they had probably lost. But a conservative judge, Jeffrey S. Sutton, joined a majority upholding the law. In the District of Columbia Circuit, Judge Laurence H. Silberman, a conservative, also ruled for it.
A three-judge panel for the 11th Circuit in Atlanta, however, declared the insurance mandate unconstitutional. The administration chose not to ask the full court to rehear the case and appealed directly to the Supreme Court.
Donald B. Verrilli Jr., who became solicitor general last June, rehearsed in multiple moot court sessions. But on the critical day of Supreme Court arguments on March 27, he momentarily choked on a drink of water and was hammered by justices skeptical of his argument. He gave a rambling answer about the limits of Congressional power and had a hard time controlling the discussion as he was peppered with questions. Commentators gave him harsh reviews, but Mr. Obama called him to show support.
Either way, administration lawyers were more disturbed by what the justices had said. They were disheartened that Justice Antonin Scalia, who had joined a ruling upholding a previous commerce clause case, seemed so hostile. Kathryn Ruemmler, the White House counsel, was said to be disturbed that Justice Anthony M. Kennedy, often the swing vote, suggested that the government had a “heavy burden.”
But current and former administration lawyers hold out hope. “I walked out of the court thinking we were going to win — not unanimously,” Mr. Weiner said. “I’ve heard a lot of these arguments. That was my gut, a
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