Georgetown's Health Care Moot Court

Last week, Georgetown Law held an event titled, “Health Care Mock Moot Court: Department of Health and Human Services v. Florida.” There were some big names participating: Steven Bradbury (head of the Office of Legal Counsel for former President George W. Bush), several behemoths of Supreme Court litigation (David Cole, Maureen Mahoney, Kannon Shanmugam, and Kathleen Sullivan), and two former Solicitor Generals (Walter Dellinger and Seth Waxman). Dellinger and Bradbury served as advocates and the rest as Justices of the Court.

(Background: the Patient Protection and Affordable Care Act (“PPACA”) was signed into law in 2010 by President Obama. Among its numerous provisions the law (1) bars insurance companies from rejecting unhealthy clients or those with ‘preexisting conditions,’ and (2) requires everyone in the United States to buy health insurance or pay a penalty.  The mandate was largely included to rebalance the loss of profits insurance companies would absorb after being forced to insure clients that pose greater financial risks.)

The mock-Justices took a cue from the real ones, immediately unleashing a barrage of hypotheticals for Dellinger to resolve. Dellinger countered that health care is nothing like forcing Americans to buy electric cars or ice cream because everyone will eventually become a participant in the healthcare market. Even though this is the first time Congress has passed a law to penalize inactivity (not buying insurance), it is also regulating a unique interstate market that differs markedly from any other consumer product. If an individual chooses not to buy milk, that will not affect any future buyer of milk.  But if an individual chooses not to buy insurance and not seek medical attention, they will push those costs on hospitals, states, and other insurance consumers when they are inevitably treated in emergency rooms.  

                Several “Justices” also expressed their concern that the law lacked a limiting principle. Authorizing Congress’ power to regulate inactivity under the commerce clause would be an unprecedented power. Dellinger dodged this question repeatedly over the half hour, but finally announced in his last five minutes that he would prefer the Court reserve the right to limit Congress’ future actions, and that there could be instances of regulating inactivity that fell outside the commerce clause.

                Bradbury started his response by extolling the historic virtues of economic freedom and rebuking Congress’ imposition of forcing Americans to engage in an economic market. He cited Gibbons v. Ogden, reminding the Court that the case granting Congress the right to regulate interstate markets did not include compelling people to engage in market activity. He pressed that it was especially troublesome that Congress invented a new power to fix a problem of its own creation, and that their solution was neither necessary nor proper.

                No one appeared compelled by the ‘economic freedom’ aspect of his argument. David Cole interjected briefly that states (namely Massachusetts) had been regulating the healthcare market in a similar way for years. It was also mentioned that economic freedoms have always been treated differently from other freedoms, and the Court has historically removed itself from economic issues, applying the most lenient “rational basis” test.  

                Justice-for-the-day Maureen Mahoney changed gears, questioning the intrusive nature of the law by comparing it to Congress’ taxing authority and other public programs like Social Security. Seth Waxman observed that the mandate’s penalty functioned like a ‘backwards tax’ – charging violators a modest penalty to provide just enough of an incentive to buy insurance. He noted that there were already exemptions from the penalty in place.  Bradbury countered that Social Security required membership through an actual tax, but the healthcare law required membership and then found individuals without insurance in violation of federal law. That opened the door to criminal charges, which have yet to be imposed, but could be if the Court upholds the PPACA.

                 The next example drew on Wickard v. Filburn, in which the Court found that the government had the ability to bar an individual from growing wheat for personal consumption in order to encourage the development of the wheat market during the Great Depression.  Against arguments from Cole and Kannon Shanmugam that this was tantamount to forcing Filburn to engage in the market, Bradbury noted that the Court did not allow the government to legally force him to buy wheat. Filburn still had the option to abstain penalty-free.   

                At the end of the event it appeared that no one thought the Supreme Court would easily strike down the individual mandate. During the question and answer session, Dellinger commented that the biggest challenge for the Obama administration will be battling back the public commentary, not what they will face on March 27th. The conservatives on stage were slow to make judgments and let the crickets answer when a student asked their view on how the Court might rule.

Cameras on the Court

When asked to express his thoughts on the possibility of televising the Supreme Court’s oral argument in 1996, Justice David Souter calmly announced before the House Appropriations Subcommittee that, “the day you see a camera come into our courtroom, it’s going to roll over my dead body.”

Not much has changed over the last ten years: not the Supreme Court’s sentiment towards incorporating the new technology, nor Congress’s desire for them to do so.

Yesterday the Senate Judiciary’s Subcommittee on Administrative Oversight and the Courts requested the testimony of four experts and one former Senator to discuss the reintroduced “Sunshine in the Courtroom Act of 2011,” which would require the Supreme Court to televise its oral arguments unless a majority of justices ruled that it violated the due process rights of an appearing party.

Although it’s unlikely the bill will become law before March, it may be passed in time for this spring’s 5 ½ hour marathon hearing of President Obama’s Affordable Care Act, the most closely-followed issue on the Court’s docket this year. Tom Goldstein, founder of SCOTUSBlog, predicted in yesterday’s hearing that as many as 50 million people would tune in to televised coverage of the justices argument.

Instead, some will wait in line outside the Court for days for a chance at the 200 seats generally reserved for members of the public – a number that could be reduced to as few as 50 to accommodate requests by the press and Supreme Court Bar. Everyone else will have to settle for a 3 minute walk-by of the room during oral argument, the transcript released the same day, or the audio recording released on the following Friday.

But those options are not easily dismissed. They show a Court that has taken great strides in the past ten years to accommodate modern technology. The Court created an impressive, easily navigable website and began uploading audio recordings in mp3 format (although Oyez has argued that this dilutes sound recordings, it is also the most widely-used sound format on the itnernet). With all of these improvements, it’s likely the Court will develop a camera-friendly policy on its own, as many of the currently televised judiciaries have done (the Supreme Court of the United Kingdom currently televises important cases, as well as many U.S. State Courts). Chief Justice Roberts likened the Court’s pace on cameras to that of the unofficial mascot of the Supreme Court, an animal featured prominently in sculptures and reliefs inside the building, “throughout is a turtle, and that’s to indicate that we move slowly but surely and on a stable basis.”

Nevertheless, former Senator Arlen Specter, who spent 25 years in Congress advocating for cameras in the Court, told the Subcommittee yesterday this is simply not enough. For a branch of government that routinely makes decisions on politically-charged issues like the death penalty, campaign finance, and the limits of executive power, the Court should open its doors as wide as possible. “It’s the public domain,” he argued Tuesday, “and it ought to be accessible to the public.” Many Senators nodded along with their former colleague, lauding the potential advantages that televised proceedings might offer, especially increased civic knowledge of the Court’s work.

But panelists cautioned against Congress taking unilateral action to force cameras on the Court, arguing that any advantages are far outweighed by the potential constitutional controversy. Maureen Mahoney, who has argued 21 cases before the Court, told the Subcommittee in a written testimony that, “the Constitution does not grant Congress any express power to regulate the manner in which the Supreme Court exercises its decision making authority in proceedings.” While the Constitution grants Congress the power to decide basic administrative questions, such as how many justices are required for quorum or what day to start the new term, there is no historical evidence that this power was intended to infringe the Court’s authority on matters of procedure. And it’s the Court’s prerogative to decide matters of constitutional interpretation, even when it’s at the center of the debate.

Goldstein took a softer approach. He told Congress that television would be good for the Court, both in improving its own image and democratic confidence as a whole.  But even if there are compelling reasons why television would be beneficial, Congress should give the Court deference to decide the issue as they see fit. “It is easy to criticize to the Supreme Court, they don’t have a PR campaign, they don’t respond.” Forcing the Supreme Court to bring cameras into the courtroom might be a little like asking a turtle to stick its neck out too far – it might just make it scuttle back to its shell.

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This article has been backdated to the date it was originally written, December 7, 2011. My apologies for not posting it earlier.