Live Blog: ‘Obamacare’ Challenged at the Supreme Court

Mar 26, 2012 9:26am

The Supreme Court begins a marathon three days of arguments on the health reform law, more commonly known as the “Affordable Care Act” or “Obamacare.”

See all of ABC’s previous health reform coverage at this special “Obamacare Challenged” page and follow developments throughout the day at this live blog.

 

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Wm. Hennessy Jr./CourtroomArt.com

 

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Linda Door of Laguna Beach, Calif. protests against the health care reform law as supporters file past the Supreme Court in Washington, Monday, March 26, 2012, as the court begins three days of arguments on health care. (AP Photo/Charles Dharapak)

4:51 – Tuesday Preview – ‘This is Not About Health Care’Matt Negrin reports:  For the handful of state attorneys general actually arguing against ObamaCare inside the Supreme Court, the debate isn’t about feelings or stories. In fact, according to the challengers, it’s not even about health care. That’s what South Carolina Attorney General Alan Wilson told reporters this afternoon as the group of Republican attorneys general, led by Florida’s Pam Bondi, huddled at the Florida House near the court. Wilson offered an analogy: If his child needed a heart transplant and he couldn’t afford it, he could rob a store for the money. While his intentions were good, the crime was still illegal, he argued — just as while “ObamaCare” might provide better health care, it breaks the rules of the Constitution (or so he and the Republican AGs say). “This is not about hurting people. This is not about health care,” Wilson said. “As attorneys general, our job is to live and die by the Constitution.” In arguments Tuesday about the so-called individual mandate, the AGs will try to persuade the justices that the Affordable Care Act unjustly forces people to have health insurance or else pay what they call a penalty and the administration calls a tax.

Transcript of Arguments – The court has also published a rush transcript of the arguments -  very fast! – and here it is in searchable format.

Audio of Arguments – The Supreme Court has posted audio of the arguments on it’s website. Listen to it here. We’ll be listening to it and pulling out key bytes.

4:36 p.m. EST – Video Blog – Faces on both sides of reform bill as shot b Matt Negrin:

 

3:32 p.m. EST – Monday Wrap-Up - The live blog has slowed down since arguments ended. And here’s why – Ariane de Vogue has this in-depth examination of what happened in court today.

Read it here.

Excerpt: While supporters and opponents of the Affordable Care Act demonstrated outside at the Supreme Court on Monday, inside the majestic chambers the 9 Justices heard arguments regarding whether it was premature for the court to hear a challenge to the health care law.

At issue on Monday is a federal law, the Anti Injunction Act (AIA), that says, in essence, that a tax payer cannot challenge a tax, at a minimum until it comes into effect.

The AIA, enacted in 1867, says “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person”. It was passed to protect the government’s need to assess and collect taxes as expeditiously as possible with minimum interference from the judiciary. If the court were to decide that the AIA applied to the individual mandate, any review of constitutionality of the mandate could not be addressed until after the mandate goes into effect in 2015.

But several of the Justices seemed skeptical of arguments that the AIA would bar a challenge to the individual mandate.

… What is unusual in the case is that neither the government, nor the challengers of the law-26 States, the National Federation of Independent Business, and four individuals, believe the AIA should apply. Because of that the Court appointed a lawyer to argue that particular issue.

 

2:41 p.m. EST – Attorneys General Prepare – The main argument on the individual mandate brought by the attorneys general of 26 states will occur on Saturday. The main plaintiff is Florida. The AGS held a press conference in Washington, D.C. today. Earlier, Matt Negrin spoke to Florida AG Pam Bondi, shown speaking below. Serena Marshall took this photo:

 

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Image Credit: Matt Negrin

1:26 p.m. EST – The Tax Question – Court watchers unanimously see it as unlikely that the court will apply the Anti-Injunction Act against the Obamacare law. But no one denies that the government has to dance around the issue of the penalty against people who don’t buy health insurance. Are they being taxed? Are they being fined? Both? Here is a telling exchange between Justice Samuel Alito and Solicitor General Donald Verrilli, arguing for the administration.

JUSTICE ALITO: General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax.
Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?

GENERAL VERRILLI: No, Justice Alito, but the Court has held in a license tax cases that something can be a constitutional exercise of the taxing power whether or not it is called a tax. And that’s because the nature of the inquiry that we will conduct tomorrow is different from the nature of the inquiry that we will conduct today. Tomorrow the question is whether Congress has the authority under the taxing power to enact it and the form of words doesn’t have a dispositive effect on that analysis. Today we are construing statutory text where the precise choice of words does have a dispositive effect on the analysis.

 

 

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Rick Santorum speaks in front of the Supreme Court. Image Credit: Matt Negrin

 

12:30 – Santorum Says Romney is Worst Candidate Against Obama on Health Reform – Rick Santorum is talking to reporters at the Supreme Court. He pointed to Obama adviser David Plouffe on This Week yesterday saying Massachusetts’ health law was the blueprint for the national law. Santorum has repeatedly said that Romney is the worst Republican against Obama on ths issue of health reform. Santorum accused a New York Times reporter of twisting his words when the reporter, Jeff Zeleny, asked Santorum if he meant Romney was the worst Republican. Santorum said Romney is the worst Republican against Obama on that issue of health reform. At the Supreme Court, Santorum said if you haven’t had an agreement with a New York Times reporter, you’re not “worth your salt” as a conservative. Read more about Santorum’s angry words with the reporter from ABC’s Arlette Saenz.

 

12:12 – Breitbart Lives at SCOTUS Arguments – ABC’s Matt Negrin reports on the scene outside the court:

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Image Credit: Matt Negrin

Before John Solhan left for the anti-ObamaCare protest at the Supreme Court, he printed out a bunch of posters bearing Andrew Breitbart’s face.

Breitbart, the conservative Internet publisher who challenged the mainstream media, died March 1. The black-and-white image of his face was recognizable to virtually every Tea Party demonstrator standing just past the steps that ascend to the high court, where justices were hearing the first hours of argument over President Obama’s health care law.

The tea partiers organized an impromptu protest in mid-morning as ObamaCare allies had a press conference of their own just a few paces away. If Breitbart were alive, Solhan said, he would have commandeered the liberals’ presser just as he did at an embarrassing news conference organized by Rep. Anthony Weiner last year.

“We’re all citizen journalists now,” said Solhan, who is from Indianapolis. “We’re doing your job for you.”

Linda Dorr, a Tea Party compatriot, picked up the charge, telling the crowd outside the Supreme Court that she was acting on Breitbart’s mantra to stand up and “tell the truth.” As she spoke, conservatives waved signs from the right-leaning Media Research Center that said “Don’t Believe the Liberal Media.”

“We got Breitbart,” Dorr, from Laguna Beach, Calif., screamed to the masses. “He’s everywhere. He’s all around us.”

“Breitbart lives! Breitbart lives!” she exclaimed. “In our voice.” More Here.

 

12:13 – Obamacare Opponents Confident – Matt Negrin reports: A key attorney general challenging ObamaCare at the Supreme Court walked out of the building this morning predicting that the justices would rule the health care law unconstitutional.

Pam Bondi, the Republican AG of Florida, told reporters on the steps in front of the Supreme Court that all nine justices “expressed concern” about the so-called mandate in the law that requires Americans to buy health insurance or pay a fee.

ObamaCare supporters say the fee is merely a tax, while its critics say the mandate unfairly makes people do something they otherwise might not want to.

“They do not believe this is a tax,” Bondi said of the justices.

The mandate will be debated more tomorrow.

“I felt very confident,” Bondi said as she was surrounded by other attorneys general challenging the law.

More from Florida AG Pam Bondi.

 

11:47 – Judicial Supremacism - Terry Moran said on the This Week Roundtable this week that the court must avoid overreaching its bounds. Wehnever possible, he said, the court needs to let the people decide their laws through the legislative process.

“It hurts the authority and the perceived impartiality of the Supreme Court if citizens see it as just nine more politicians up there, nine more political hacks siding with one party or the other. The justices know this, and some are worried about it. They know that the respect and trust of the people are the true and only sources of the Court’s authority. They do not want to squander that.”

 

11:55 – Justices Skeptical of Delaying Decision – Terry Moran – ABC’s Supreme Court expert and Nightline anchor Terry Moran, who was in the chambers for arguments today, calls in to say the questioning by judges did not seem to indicate they would rule the anti-injunction act applies to the health reform law.

 

11:38 – Arguments Done for the Day – Rev. Rob Schenck, the Reverend who had Ticket #1, is giving a press conference outside the Supreme Court discussing the arguments. He and Jay Sekulow said Justice Alito, in particular, seemed skeptical of the government’s argument that the penalty for not buying health insurance is a tax rather than a fine. But not the kind of tax that triggers the Anti-Injunction Act and would punt any decision on the law until 2015.

 

11:23 -Support for Obamacare (or Lack Thereof) – An ABC News / Washington Post Poll found, according to ABC’s polling unit that two-thirds of Americans say the U.S. Supreme Court should throw out either the individual mandate  in the federal health care law or the law in its entirety,  signaling the depth of public disagreement with that  element of  the Affordable Care Act.”

More from their write-up:

This ABC News/Washington Post poll finds that Americans oppose the law overall by 52-41 percent. And 67 percent believe  the high court should either ditch the  law or at least the portion that requires nearly all Americans to have coverage.

The law  has never earned majority support in ABC/Post polls – and this update, produced for ABC by Langer Research Associates, finds a strong sense its critics are dominating the debate. Seventy percent of Americans report hearing mainly negative things about the law lately;  just 19 percent say the buzz has been positive. Even among its supporters, 53 percent are hearing more negatives than positives. Among opponents this soars to 88 percent.

While 67 percent of Americans favor throwing out either the whole law or at least the mandate, the data can also be construed to show that 51 percent favor either keeping the whole law or the law minus the mandate (26 and 25 percent, respectively). Keeping the law without the mandate, though, is a difficult task, since insurers say it’s needed to restrain coverage costs.

KEEP OR KILL – Given that reality, respondents in this survey who prefer to keep the law but without the mandate were asked which they’d prefer if that option were not available: keep the law entirely, or kill it entirely. They tipped toward killing it, 52-44 percent.

 

11:06 – Obama v. Obama on Health Care ReformABC’s Jonathan Karl reports:  Mitt Romney is not the only one with a flip flop issue when it comes to health care. As a new video by the Republican Super PAC American Crossroads vividly reminds us, Barack Obama strongly opposed the idea of forcing people to buy health insurance (the so-called individual mandate at the center of this week’s Supreme Court case) when the idea was proposed by Hillary Clinton in the 2008 Democratic primary.

Here’s the video.

It is one of the political oddities of the health care debate that the battle over the individual mandate — the aspect of Obamacare most hated by the Tea Pary –  was an idea strenuously opposed by candidate Obama and long supported by conservatives ranging from Newt Gingrich and the Heritage Foundation to Mitt Romney.

 

10:48 – This Week Rewind – Plouffe vs. Bachmann – David Plouffe is one of President Obama’s top advisers and he argued the law in constitutional in an interview with George Stephanopoulos yesterday.

“As it relates to the Supreme Court, we’re confident that it’s going to be upheld, he said, adding,  “You had Democratic and Republican jurists upheld it in lower court decisions, including two very prominent conservative jurists.” Plouffe said people don’t want to re-fight the political battle again even though most of the law does not take effect until 2014.

“When the reality of health reform is in place,” said Plouffe, “it will be nothing like  the fear mongering.”

 

 

Stephanopoulos also talked to former presidential candidate Michelle Bachmann, who said any GOP nominee would fight to repeal the law.

“The real issue that most Americans are concerned about is the constitutionality of the government forcing Americans to pay for a very expensive insurance policy,” Bachmann said. “The people do not like this bill at all. They do not like the federal government forcing them to spend their money in a way that they don’t want to spend it.”

 

 

10:42 a.m. ET – Call it Obamacare – Democrats have generally shied away from calling the health reform law Obamacare. They like to call it the “Affordable Care Act.” But on Friday – the two year anniversary of the president signing the law – the president’s campaign attempted to claim the “Obamacare” phrase from Republicans. President Obama has in the past said he doesn’t care if people call it “Obamacare”; “I do care,” he has said.  It will be interesting to see if Democrats really embrace the term. Read more about whether it’s OK to call it Obamacare.

 

10:37 a.m. ET – Doctors on Both Sides – There are plenty of physicians on both sides of the health reform law. Most of the doctors in Congress oppose the law. There are two doctors in the senate and both – Sen. John Barasso of Wyoming and Tom Coburn or Oklahoma – fought against it.  But it does have it’s supporters, including a group that spoke earlier this morning at the court.

 

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Image Credit: Matt Negrin

 

10:27 – Santorum Expected – T-Minus two hours until Rick Santorum, the former Pennsylvania senator who is  running for president as  a Republican, is scheduled to make an appearance outside the Supreme Court. He is trying to more pointedly draw health reform into his campaign against Mitt Romney for the Republican nomination. Romney helped inspire the national health reform law by enacting a state health reform law in Massachusetts.  Romney has said the state law would not work on the national stage and pledged to try to repeal “Obamacare” if he’s elected as president.

10:22 a.m. EST – Glossary – Confused by the “individual mandate?” Not sure  what “severability” is? Curious about why the Medicaid expansion is so aggravating to some governors? Check out our Cliff’s Notes glossary of what the justices will be saying.

 

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Image Credit: Matt Negrin

10:08  a.m. EST – Arguments should be getting underway inside the chamber. But because the Supreme Court does not allow live broadcast, we’re not entirely sure what’s being said. We’ll know more in about 90 minutes. A transcript is expected later today so that court watchers can read tea leaves on whether their questions hold any clues to how they will vote later this year when the decision is handed down. Today’s arguments are concerned with whether the penalty assessed against people who don’t have insurance is a tax or a fine and how that works with the Anti-Injunction Act.It is a technical argument, but how justices decide could mean the decision is punted until 2015, when the first fine/tax for not purchasing health insurance would be assessed.

Read more here about the Anti-Injunction Act.

Tomorrow’s arguments have to do with the Individual Mandate.

 

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Image Credit: Matt Negrin

9:53 a.m. EST – Not everyone protesting at the court is there specifically for the health reform arguments. Matt Negrin snaps this photo of opponents of abortion rights who protest every day at the court.

9:44 a.m. EST – What to Expect – We’re calling it a marathon three days of arguments, and for the Supreme Court it is a relative marathon. But oral arguments today are only scheduled to last 90 minutes. See the full schedule from Ariane de Vogue here.

Monday: Anti Injunction Act (AIA): Very technical arguments expected on a key question that could punt this whole issue down the road 3-4 years. At issue is a federal law (the AIA)  that says that courts can’t consider a challenge to  a tax until that tax is actually assessed.

If the Supreme Court rules that the AIA applies to the health care law then no challenge to the individual mandate can be heard until after 2014, when it goes into effect, unless Congress acts. One appeals court in Richmond dismissed a challenge to the mandate based on the AIA, and one very conservative judge on the DC Court of Appeals came to the same conclusion in a dissenting opinion. Neither the challengers nor the government believe the AIA should apply, so the court hired a lawyer to argue a position that neither of the other parties would argue  -  that the challenge to the individual mandate is premature and can only be brought once it goes into effect in 2014.

90-minutes of arguments begin at 10 am.

Arguing for the government: Solicitor General Donald B. Verrilli Jr.

Opposition: Gregory G. Katsas for the National Federation of Ind. Business

Court appointed amicus counsel: Robert A. Long

 

 

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Image Credit: Matt Negrin

9:30 a.m. EST – A Band, Cutting in Line and the Last Ticket In- From Matt Larotonda outside the court – A brass band and bongo drum have appeared in the picket line formed by supporters of the health reform law. The bongo drum made the line seem more like something you might see parading in New Orleans.

Despite the divisive debate the people on line have referred to each other as a family. There have been no quarrels on the merits of the law, but some disagreements over line cutting.

A pair of friends, one for and one against the law, took it upon themselves to organize the campers to maintain the “integrity of the line.” With clipboards the duo took names of their peers to discourage line cutters.

The last ticket into the court for oral arguments split a group of three students on the line, leaving one in the cold.

9:18 a.m. EST – First Person in Line – Our Supreme Court reporter Ariane de Vogue talked to the first person in line:

Reverend Rob Schenck, President of the  National Clergy Counsel, held a pink ticket with a big number 1 on it to signify his place in line at the Supreme Court this morning. “I am indeed the first person in line” he said, “I’ve got the lucky number!” He had a team of people helping him hold his place in line.

Why is he here?

“The implications of this reform act for religious organizations are enormous, ” he says, “the tension between compassionate care for people which is a very very important one for us is met with a conflict  with our own consciences  because of the nature of the health insurance policies  that individuals and organizations will now be forced to carry if this survives the Supreme Court.”

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Ariane de Vogue

The line to get into oral arguments – the court chambers hold only several hundred people – had formed last Friday, when our Senate producer, Sunlen Miller, interviewed a handful of people already camped out in front of the Supreme Court. They wouldn’t give her their names because they were being paid to hold the spots in line. Schenck was not in front of the court Friday. Read more about the line on Friday here.

Compiled by ABC’s Z. Byron Wolf

http://abcnews.go.com/blogs/politics/2012/03/obamacare-challengers-say-this-is-not-about-health-care/
But for the handful of state attorneys general actually arguing against ObamaCare inside the Supreme Court, the debate isn’t about feelings or stories. In fact, according to the challengers, it’s not even about health care.
That’s what South Carolina Attorney General Alan Wilson told reporters this afternoon as the group of Republican attorneys general, led by Florida’s Pam Bondi, huddled at the Florida House near the court.
Wilson offered an analogy: If his child needed a heart transplant and he couldn’t afford it, he could rob a store for the money. While his intentions were good, the crime was still illegal, he argued — just as while “ObamaCare” might provide better health care, it breaks the rules of the Constitution (or so he and the Republican AGs say).
“This is not about hurting people. This is not about health care,” Wilson said. “As attorneys general, our job is to live and die by the Constitution.”
In arguments Tuesday about the so-called individual mandate, the AGs will try to persuade the justices that the Affordable Care Act unjustly forces people to have health insurance or else pay what they call a penalty and the administration calls a tax.

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