Supreme Court will hear health care case this term (AP)

By JESSE J. HOLLAND and MARK SHERMAN, Associated Press Jesse J. Holland And Mark Sherman, Associated Press – 44?mins?ago

WASHINGTON – The Supreme Court said Monday it will hear arguments next March over President Barack Obama's health care overhaul — a case that could shake the political landscape as voters are deciding if Obama deserves another term.

This decision to hear arguments in the spring sets up an election-year showdown over the White House's main domestic policy achievement. And it allows plenty of time for a decision in late June, just over four months before Election Day.

The justices announced they will hear an extraordinary five-and-a-half hours of arguments from lawyers on the constitutionality of a provision at the heart of the law and three other related questions about the act. The central provision in question is the requirement that individuals buy health insurance starting in 2014 or pay a penalty.

In the modern era, the last time the court allotted anywhere near this much time for arguments was in 2003 for consideration of the McCain-Feingold campaign finance reform. That case consumed four hours of argument. This argument may spread over two days, as the justices rarely hear more than two or three hours a day.

The 2010 health care overhaul law aims to extend insurance coverage to more than 30 million Americans, through an expansion of Medicaid, the requirement that individuals buy health insurance starting in 2014 or pay a penalty and other measures. The court's ruling could decide the law's fate, but the justices left themselves an opening to defer a decision if they choose, by requesting arguments on one lower court's ruling that a decision must wait until 2015, when one of the law's many deferred provisions takes effect.

A White House spokesman said, "We are pleased that the court has agreed to hear this case."

"We know the Affordable Care Act is constitutional and are confident the Supreme Court will agree," communications direct Dan Pfeiffer said in a statement.

Senate Republican Leader Mitch McConnell of Kentucky called the law an "unprecedented and unconstitutional expansion of the federal government into the daily lives of every American."

"In both public surveys and at the ballot box, Americans have rejected the law's mandate that they must buy government-approved health insurance, and I hope the Supreme Court will do the same," McConnell said.

Republicans have called the Patient Protection and Affordable Care Act unconstitutional since before Obama signed it into law in March 2010. But only one of the four federal appeals courts that have considered the health care overhaul has struck down even a part of the law.

The federal appeals court in Atlanta said Congress exceeded its power under the Constitution when it adopted the mandate. The federal appeals court in Cincinnati upheld the entire law, as did appellate judges in Washington, DC, in recent days.

The case could become the high court's most significant and political ruling since its 5-4 decision in the Bush v. Gore case nearly 11 years ago effectively sealed George W. Bush's 2000 presidential election victory.

In addition to deciding whether the law's central mandate is constitutional, the justices will also determine whether the rest of the law can take effect even if that central mandate is held unconstitutional. The law's opponents say the whole thing should fall if the individual mandate falls.

The administration counters that most of the law still could function, but says that requirements that insurers cover anyone and not set higher rates for people with pre-existing conditions are inextricably linked with the mandate and shouldn't remain in place without it.

The court also will look at the expansion of the joint federal-state Medicaid program that provides health care to poorer Americans, even though no lower court called that provision into question. Florida and the 25 other states say the law goes too far in coercing them into participating by threatening a cutoff of federal money. The states contend that the vast expansion of the joint federal-state Medicaid program and the requirement that employers offer health insurance violate the Constitution. No appeals court has agreed.

"The court recognized the seriousness of these vitally important constitutional challenges by allocating an extraordinary amount of time for oral argument," Florida Attorney General Pam Bondi said.

Lastly, the justices will consider whether arguments over the law's validity are premature because a federal law generally prohibits challenges to taxes until the taxes are paid. The federal appeals court in Richmond, Va., ruled earlier this year reasoned that the penalty for not purchasing insurance will not be paid before federal income tax returns are due in April 2015, therefore it was too early for a court to make a ruling on the law.

The administration agreed to seek prompt Supreme Court review of the health care overhaul, though it had options for trying to delay the court's consideration of the law until after the election. The Justice Department passed up the chance to ask the appeals court in Atlanta to reconsider its decision. It is common for the Justice Department to seek review by the full appeals court when a three-judge panel rules against the government.

Early on, at the district court level, rulings followed political affiliation. Judges appointed by Democratic presidents upheld the law, while Republican appointees struck it down.

But party lines blurred at three federal appeals courts. In Atlanta, Judge Frank Hull, a Clinton appointee, joined with a Republican colleague in striking down the mandate. In Cincinnati, Judge Jeffrey Sutton, a Bush appointee, was the deciding vote in upholding the law. And in the District of Columbia, Senior Judge Laurence Silberman, named to the bench by President Ronald Reagan, and Senior Judge Harry Edwards, a Carter appointee, voted together to uphold the law.

Legal experts have offered a range of opinions about what the high court might do. Many prominent Supreme Court lawyers believe that the law will be upheld by a lopsided vote, with Republican and Democratic appointees ruling in its favor. Still others predict a close outcome, with Justice Anthony Kennedy, a Republican who sometimes joins his four Democratic colleagues, holding the deciding vote.

Six separate appeals have been filed with the high court. Three come from the Atlanta court, where the administration, the states and the National Federation of Independent Business appealed different aspects of the court ruling. From Richmond, Liberty University and Virginia appealed decisions turning back their challenges to the law. The Thomas More Law Center of Ann Arbor, Mich., appealed a ruling by the Cincinnati-based court upholding the law.

Ultimately, the court chose the Atlanta court's ruling as the primary case to review. That decision means that the highly regarded former Bush administration solicitor general, Paul Clement, is likely to argue on behalf of the challengers. The current Solicitor General, Donald Verrilli Jr., is expected to defend the law before the justices.

Two justices, conservative Clarence Thomas and liberal Elena Kagan, who had been asked by advocacy groups to withdraw from the case, are going to take part in it. The court's practice is for justices who are staying out of a case to say so when the case is accepted and no one has announced a recusal. Thomas's wife, Virginia, has worked for a group that has advocated against the health care overhaul, and Kagan served as solicitor general in the Obama administration when the law was being formulated.

View the original article here

US Supreme Court opens, likely to wade into health care debate (The Christian Science Monitor)

Washington – The 2011-2012 US Supreme Court term, set to begin Monday, is best described by a case that isn’t even on the docket yet.

It now seems inevitable that the justices will agree to hear the legal challenge to President Obama’s health care reform law, the Affordable Care Act.

The case, HHS v. Florida, would instantly transform the high court’s upcoming nine-month session from an interesting and important collection of legal disputes into an historic constitutional showdown with major political implications – in a presidential election year.

MONITOR QUIZ: Weekly News Quiz for Sept. 25-30, 2011

The legal challenge threatens one of President Obama’s most ambitious accomplishments, the attempted wholesale reformation of the health care insurance market to extend health insurance to millions of Americans who otherwise couldn’t afford it.

Usually, the Supreme Courta€?s term is defined on the eve of the first Monday in October by the array of cases the justices have already agreed to hear and decide.

The unusual feature of the start of this year’s term is that the “Obamacare” case isn’t the only blockbuster looming on the high court’s horizon. In the weeks ahead, the justices are set to consider taking up a string of other potential landmark cases that could further transform the new term into a clash of constitutional titans. They include disputes examining:

‧ Whether the Second Amendment protects a right to carry a gun in public places for self-defense.

‧ Whether the use of racial preferences in university admissions programs is unconstitutional.

‧ Whether Arizona’s tough immigration law, SB 1070, is preempted by federal statutes and the more gentle policy positions embraced by the Obama administration.

‧ Whether large crosses erected on public roadsides in Utah and a Ten Commandments display in an elected judge’s courtroom in Ohio violate the separation of church and state.

Bleeping dirty words on TVIn addition to that unprecedented cluster of potential mega-cases, the high court is already set to hear a dispute involving the power of the Federal Communications Commission to punish broadcast television stations for showing brief nudity or failing to bleep dirty words during prime time programming.

The case, FCC v. Fox Television, will examine whether the FCC’s indecency enforcement procedures violate the First and Fifth Amendments. At issue is the government’s attempt to police the public air waves to prevent not only obscene material, but also indecent communications offensive to a family-oriented audience.

The current indecency enforcement effort stems from a 1978 high court decision that upheld sanctions against stations that broadcast comedian George Carlin’s famous routine on the seven dirty words you can’t say on the public air waves.

For years, the FCC enforced a policy against the systematic and repeated use of offensive words, most of which had been identified – effectively and repeatedly – by Mr. Carlin.

In 2001, the FCC changed course. It began enforcing a prohibition not just on systematic indecency but also on the use of fleeting expletives – dirty words blurted out during a prime time program. Several celebrities during music award programs on Fox used the “F-word,” and the “S-word.” In addition, an episode of ABC’s NYPD Blue featured a scene revealing a woman’s bare buttocks.

The FCC declared the programs “indecent.”

The broadcasters fought back with a lawsuit, claiming the FCC’s censorship was ill-defined and difficult to decipher. The Second US Circuit Court of Appeals in New York agreed and struck down the FCC’s policy as unconstitutionally vague.

The government defends the FCC policy, noting that broadcasters had been given fair notice.

Legal analysts are watching the case to see if the court uses it to affirm traditional indecency standards or instead requires a more permissive policy in light of widespread use of the Internet and cable television.

“I think the thing that will interest the court most is just the prospect of chilling” and whether the FCC policy provides the requisite degree of clarity, John Elwood, an appellate specialist and former law clerk to Justice Anthony Kennedy, told a recent briefing at the National Chamber Litigation Center.

“One thing that makes [Justice Kennedy] really passionate, is will people know whether they can broadcast something,” Mr. Elwood said. “If it is a close question whether you can broadcast Schindler’s List because there are naked people in concentration camps, that is going to give him a lot of heartburn.”

In an important case involving the First Amendment’s separation of church and state, the justices will consider whether a former teacher at a Lutheran elementary school can sue the church-run school for alleged disability discrimination and retaliation.

The case is Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC and Cheryl Perich.

School officials argue that the lawsuit is barred under the “ministerial exception,” a legal doctrine which blocks employment-related lawsuits against religious organizations filed by employees who perform important religious functions.

The ministerial exception is designed to insulate religious groups from interference and second-guessing by judges and others about how the group is carrying out its religious mission. It applies to pastors, priests, and rabbis.

The issue in the Lutheran school case is whether it also applies to a teacher who spent most of her day presenting a secular curriculum to her students, but who also was a “commissioned minister” who taught religious classes and led the children in prayer.

Douglas Laycock, a University of Virginia law professor representing the Lutheran school, says the case could trigger “a revolution in relations between church and state.”

“The ministerial exception is limited to employees who perform functions important to the employer’s religious mission,” he writes in his brief to the court. He says the teacher was dismissed for violating church rules and that the courts cannot decide her claim without becoming involved in underlying religious disputes.

“Allowing her claim to go forward would leave the church unable to control who teaches the faith to the next generation,” Mr. Laycock writes.

Lawyers for the teacher counter that generally applicable anti-discrimination laws are fully enforceable and “need not give way to religious exercise.”

The teacher is not asking any court to take sides in a religious dispute, her lawyers say. Rather, she merely seeks a determination of whether her dismissal violated generally applicable provisions of a federal anti-discrimination law.

The disputed status of JerusalemIn Zivotofsky v. Clinton, the high court will wade into a clash between Congress and the executive branch over a sensitive matter of foreign affairs – the disputed status of Jerusalem.

Because Jerusalem is a disputed territory and a major source of disagreement in Middle East peace talks, the US government has tried to remain neutral on the Jerusalem issue.

As a result, children born in Jerusalem to US citizens are listed on birth documents as having been born in Jerusalem. No country is noted on the State Department documents.

Pro-Israeli members of Congress who disagree with this neutral posture, sponsored and passed a law directing the State Department to record the place of birth as Jerusalem, Israel.

The issue came to a head following the birth of Menachem Zivotofsky, a US citizen, in Jerusalem. His mother applied for a passport for her infant son and asked that the place of birth be recorded as Jerusalem, Israel. When the State Department refused, the parents sued to enforce the federal statute.

A federal judge threw the case out, saying it presented a political question best left to the elected branches of government to iron out. The federal appeals court in Washington affirmed.

In agreeing to take up the parents’ case, the high court asked both parties to address an additional issue: Whether Congress’s Jerusalem law impermissibly infringes on the president’s power to recognize foreign sovereigns?

Neil Kinkopf, a law professor at Georgia State University, says the added question may telegraph a decision in the president’s favor.

During a recent Supreme Court preview briefing, Professor Kinkopf told the American Constitution Society that four of the nine justices had prior work experience arguing separation of powers issues on the side of the president.

They include Justices Elena Kagan, Antonin Scalia, Samuel Alito, and Chief Justice John Roberts.

This prior experience, he said, will “orient the court to look favorably on the president’s position.”

But Kinkopf warned, “The way they do it could have dramatic consequences because Congress has other powers and the president has other exclusive powers, like the commander-in-chief power.”

How the court resolves the Jerusalem issue could set the stage for larger confrontations, he says.

“Can Congress use its spending power to limit the way the president exercises the commander in chief power?” Kinkopf asks.

“Could Congress say to the president no money may be spent for military operations in Libya, or no money may be spent for a surge in Iraq,” he asked.

Two important Fourth Amendment cases are also high on the court’s docket this term.

In Florence v. Board of Chosen Freeholders, the justices have agreed to decide whether the government has the power to order the routine strip search of persons detained by law enforcement regardless of how minor the offense or any individual assessment of his or her likelihood to be carrying a weapon or contraband.

Tracking criminal suspects' carsThe court will also decide in United States v. Jones whether the Fourth Amendment allows law enforcement officials to install a GPS tracking device on a suspect’s car to conduct continuous round-the-clock surveillance without first obtaining a judicially-authorized warrant.

By far the most significant case of the term – and perhaps for a generation – will be the constitutional challenge to the Affordable Care Act.

Did Congress act within its commerce clause powers when it approved the ACA’s individual mandate?

The ACA requires every American to purchase a government-approved level of health insurance or pay a penalty.

Opponents say never before has the US government required citizens to purchase a private service or face punishment. Supporters say the measure is well within Congress’s power to regulate interstate commerce.

A panel at the Eleventh US Circuit Court of Appeals in Atlanta voted 2 to 1 to strike down the individual mandate as exceeding Congressional authority. A different panel at the Sixth Circuit in Cincinnati ruled that the mandate did not violate commerce clause restrictions. A third panel at the Fourth Circuit in Richmond threw the case out on other grounds.

“The federal government’s assertion of power, under the commerce clause … is unprecedented, lacks cognizable limits, and imperils our federalist structure,” the Eleventh Circuit majority declared.

In a brief urging the high court to take up the case, US Solicitor General Donald Verrilli said the Eleventh Circuit had jettisoned “the considered judgment of the elected branches of government – after years of study and deliberation – on how to address a crisis in the national health care market.”

He added: “The minimum coverage provision is squarely within Congress’s power to regulate interstate commerce, lay and collect taxes, and enact legislation.”

“The court of appeals’ contrary decision is fundamentally flawed and denies Congress the broad deference it is due in enacting laws to address the nation’s most pressing economic problems and set tax policy,” he wrote.

It is now up to the Supreme Court to resolve the disagreement. Initial briefs have already been filed. Reply briefs are expected by the end of the month. The court could announce in November whether it will hear the case, and which questions it will decide. A final decision could be expected by late June.

The ACA is one of the Obama administration’s greatest achievements – an attempt to fundamentally reshape the provision of health insurance nationwide. But it is also controversial. Attorneys general from 26 of the 50 states are co-litigants who urged the Eleventh Circuit to declare the law unconstitutional.

The reform effort has also split the nation. That division is expected to continue and deepen with each stage of the litigation extending well into the 2012 presidential campaign.

MONITOR QUIZ: Weekly News Quiz for Sept. 25-30, 2011

Get daily or weekly updates from CSMonitor.com delivered to your inbox. Sign up today.

View the original article here

Foes say Chavez's health should not be mystery (AP)

By CHRISTOPHER TOOTHAKER, Associated Press Christopher Toothaker, Associated Press – 1?hr?51?mins?ago

CARACAS, Venezuela – Opposition leaders accused Hugo Chavez on Sunday of failing to fully inform Venezuelans about his health, saying the president's condition following surgery in Cuba should not be shrouded in secrecy.

Despite assurances from top government officials and close relatives that Chavez is recuperating following surgery more than two weeks ago, the president's silence and seclusion since the operation have spurred growing speculation about how ill Chavez may be.

Opponents say Chavez and his aides should be more straightforward.

"The uncertainty regarding Hugo Chavez's health and considerable speculation over the real illness affecting him reveal the government's serious constitutional violations," said Miguel Angel Rodriguez, an opposition lawmaker.

Under Venezuela's Constitution, Chavez must "give us the diagnosis, talk to us about the treatment and answer questions," Rodriguez said in a statement.

Venezuelan officials have said Chavez is recuperating, but have provided few details.

Chavez's Twitter stream has been active, but it has not provided any information about his health. Three messages appeared within 30 minutes Saturday afternoon, including one mentioning visits by Chavez's daughter Rosines and grandchildren.

"Ah, what happiness it is to receive this shower of love!" the Twitter message read. "God bless them!"

Nobody has heard Chavez speak publicly since he told Venezuelan state television by telephone on June 12 that he was quickly recovering from the surgery he had undergone two days earlier for a pelvic abscess. He said medical tests showed no sign of any "malignant" illness.

It remains unclear when he will return to Venezuela.

Chavez's mother, Elena, wished her son a speedy recovery on Sunday.

"May the power of God heal him and bring him to me," she told state television.

The vice president must take the president's place during temporary absences of up to 90 days, according to the constitution. Some opposition politicians have suggested that Vice President Elias Jaua should replace Chavez until he recovers, a move that Jaua has ruled out.

If Chavez were to relinquish power, some analysts believe his political movement would crumble or split.

"No one else is really ready to step in and take charge," said Michael Shifter, president of the Inter-American Dialogue, a Washington-based think tank. "The current situation shows how precarious one-man rule is: Everything hinges on the whims of a single individual."

"A search for a successor to Chavez would significantly scramble the country's politics," Shifter added. "A fierce power struggle within Chavismo would almost certainly ensue."

Infighting also would likely break out within Venezuela's loosely knit opposition, which plans to hold a primary to pick a presidential candidate for next year's election.

"The opposition would also be thrown off balance," Shifter said. "Their single-minded focus on Chavez has kept them more united in recent years."

View the original article here