Guest Host: Marc Fisher

The Supreme Court this week denied an attempt to expedite Virginia’s challenge to the new federal health care law. It’s the most recent development in legal wrangling over health care that spans numerous lawsuits filed in multiple states. We examine what the legal challenges could mean for the future of the health care we receive.


  • Bara Vaida Contributing writer, Kaiser Health News
  • Brad Joondeph Professor of Law, Santa Clara University


  • 13:06:41

    MR. MARC FISHERFrom WAMU 88.5 at American University in Washington welcome to "The Kojo Nnamdi Show," connecting your community with the world. I'm Marc Fisher sitting in for Kojo. Coming up later in the hour, we'll nod to the royal news across the pond and find out where in our region you can satisfy your hankering for clotted cream, sublime scones or pure pasties. But first, more than a year after the passage of President Obama's health care overhaul, people are still fighting over the legitimacy of the law.

  • 13:07:17

    MR. MARC FISHEREarly this week, the Supreme Court decided not to expedite a hearing on Virginia's challenge to the law, but that doesn't mean that the courts will be silent on this topic. In fact, there's a lot of action scheduled for this spring and summer and before you know it, the constitutionality of requiring Americans to buy health insurance will come before the Supreme Court.

  • 13:07:38

    MR. MARC FISHERTo understand what's going on and where we should point our attention, we've invited Bara Vaida. She's a contributing writer for Kaiser Health News. And joining us by phone is Brad Joondeph. He's a professor of law at Santa Clara University where he specializes in constitutional law and keeps an eye on the health care litigation through his blog. Let's start with you, Bara. This decision that came down on Monday, well, actually a decision not to decide, what does this mean for the immediate and long term future of the health care reform?

  • 13:08:15

    MS. BARA VAIDAWell, for right now, it doesn't mean anything. What happened was Congress -- what the Supreme Court decided to do was that they did not want to fast track hearing this case. They wanted to let the appeals court hear this case before it came to them because the Court does like to hear what the lower courts have to say.

  • 13:08:35

    FISHERAnd that's the traditional way of doing things. And Brad Joondeph, obviously not much of a surprise there. But was there -- is there any way to get a reading on where the Supreme Court is heading or how they want to handle this barrage of cases that's coming down on the health care law?

  • 13:08:54

    MR. BRAD JOONDEPHI think it's a little too hard to say -- too early to say at this point. I think there're probably some votes that we can rather easily predict. I think probably the four Democratic appointees, Sotomayor, Kagan, Briar and Ginsburg are pretty likely to vote, if not certain to vote to uphold the act, the Affordable Care Act. I think it's much harder to judge the conservative justices, the five Republican appointees. But nothing -- I guess to answer more directly, nothing that the Supreme Court has done thus far gives us any real indication of what it's likely to do once one of the cases reaches the court.

  • 13:09:45

    FISHERYou can join our conversation about the Health Care Reform Act by calling 1-800-433-8850 or e-mail us at kojo K-O-J-O And Bara Vaida, there is -- I mean, if you look across the nation, there are a couple of dozen challenges to the constitutionality of the Obama health care plan and they're challenging various aspects of it. But if you had to boil it down, what are the main complaints?

  • 13:10:18

    VAIDAMost of it is about, you know, the constitutionality of the commerce clause and the individual mandates and whether that's constitutional. And also --

  • 13:10:29

    FISHERIn other words, whether it's constitutional to tell people you must buy health insurance.

  • 13:10:32

    VAIDACorrect. And the other is that, you know, does it hinge -- does it fringe on state rights?

  • 13:10:40

    FISHERAnd, Brad Joondeph, is there legitimate cause -- I mean, is there -- are there reasonable arguments on both sides of this?

  • 13:10:48

    JOONDEPHYeah, I think there are. I think, at first, people rejected some of these arguments out of hand, but the further this has gone along, it's become clear that there are pretty good arguments on both sides. The argument as to why it may exceed Congress' enumerated powers -- and the most likely power here is the commerce clause or the commerce clause as augmented by the necessary and proper clause -- is that Congress has never tried, at least through its commerce power, to regulate what can be characterized as inactivity, literally doing nothing.

  • 13:11:29

    JOONDEPHCongress effectively is telling every American -- with some small exceptions, every American that they must, by January 1st, 2014, obtain minimally adequate health coverage. And Congress has never done this before, regulated interstate commerce by requiring individuals to purchase a rather costly product from private vendors. And so just the very nature of the fact that it's never been tried before makes it uncertain whether it's within Congress' enumerated powers because there's no judicial precedent for it.

  • 13:12:08

    FISHERWell, now, the government requires us to buy auto insurance, but obviously we don't have to drive a car. So there's a difference there. There are requirements that you have insurance on your home in many places.

  • 13:12:20

    JOONDEPHWell, if I could just interject.

  • 13:12:22

    FISHERYeah, please.

  • 13:12:22

    JOONDEPHThe big difference there is that those are state requirements. Those are imposed by state law. The challenges here are not against purchasing health insurance, per se, that government writ large can't require you to do it, but that Congress can. Congress, as our national government, is a legislative body with limited enumerated powers. And while states can essentially do anything that's not prohibited by the Constitution, the federal government is only empowered to act when the Constitution affirmatively authorizes it to act. And so the question here that's being raised in the principle lawsuits is not whether it can ever be mandated by any level of government, but whether the federal government can require this.

  • 13:13:10

    FISHERAnd, Bara Vaida, let's take a step back and tell us where we stand on the implementation of the new health care law. What has changed already? What has gone into effect and what big pieces are still out there waiting to come into play?

  • 13:13:27

    VAIDAAn important thing that happened is that parents can now keep their children on their health insurance plans until the age of 26, and that's really huge. The law also created a fund for states to help people who are having trouble getting health insurance right now because they have preexisting conditions. And they're now setting mandatory benefit levels and they've set new rules for payment systems, Medicare, that hopefully will reduce the cost of the Medicare spending. And there's things such as menu labeling. You'll now have to see the calories when you go to a (unintelligible) you'll be able to see the calories of each item that you're buying.

  • 13:14:13

    FISHERAnd are there any elements of the law that are being held back because either courts have ruled against them or they're waiting to see what happens?

  • 13:14:21

    VAIDANo, there's nothing right now. The...

  • 13:14:23

    FISHERSo basically...

  • 13:14:24

    VAIDA...things are moving along.

  • 13:14:24

    FISHER...this is full force.

  • 13:14:25

    VAIDAYep, yep.

  • 13:14:26


  • 13:14:26

    VAIDAHHS is moving along -- Health and Human Services Department is moving along with writing the regulations.

  • 13:14:30

    FISHERAnd, Brad Joondeph, if you had to point to any of these cases that are out there in the various states that seem to have the best chance of winning, which would those be?

  • 13:14:42

    JOONDEPHWell, I don't think anyone has a greater chance of winning than another because they all present the same legal question. And ultimately, the Supreme Court is just going to resolve the pure legal question of whether the act is constitutional, within Congress' powers. I think -- if I had to guess, I think the case from Florida, which has 26 different states as plaintiffs, is the case most likely that the Court is going to grant (word?) and decide. And there are a few reasons for that.

  • 13:15:14

    JOONDEPHOne is that you have some -- unlike the Virginia case being brought by the Attorney General there, you have some individual plaintiffs in the Florida case, which means legal standing to challenge the individual mandate which is imposed on individual people, not on states is more clearly established. I think the states actually have some difficulty demonstrating that they're entitled to challenge the individual insurance mandate.

  • 13:15:44

    JOONDEPHThe other thing is, as Bara alluded to before, there is this second plausible claim which has to do with the Medicaid amendments and whether the Affordable Care Act by requiring states to expand coverage effectively up to all individuals at 138 percent of the federal poverty level, is effectively ordering the states to implement federal legislation. And that claim is only being brought in the Florida case. And so if the Supreme Court wanted to deal with that issue too, it can only get at that issue by granting the case from Florida.

  • 13:16:21

    FISHERBrad Joondeph is professor of law at Santa Clara University. And Bara Vaida is a contributing writer for Kaiser Health News. And, Bara, although costs are not at the core of any of these cases that are challenging the constitutionality of the Obama plan, there is nonetheless a good deal of political opposition to the idea that this new structure for health care in this country is going to be vastly more expensive. And already we're seeing insurance companies jacking up premiums. Are they doing so because of this law or are there other factors that are driving those costs?

  • 13:16:54

    VAIDACosts have been rising continually so that's why they've been raising their prices. One of the things that -- this law doesn't kick in -- the majority of the law actually doesn't kick in until 2014, this individual mandate. And then, at that point, the government is going to subsidize people to help them buy health insurance on these exchanges. And, yes, that is going to -- that is going to be expensive.

  • 13:17:19

    FISHERWell, you can join us by calling 1-800-433-8850 or e-mail at And, Brad Joondeph, what role -- judges always like to say that politics and political party play no role in their decisions. But as you've seen these first decisions on these cases challenging the constitutionality of the health care law, there does seem to be a break along party lines. Is that a fair reading of what's happened so far?

  • 13:17:52

    JOONDEPHI think it's fair to a degree. It's true though that even in the cases that have come down invalidating parts of the act handed down principally by -- well, actually exclusively by Republican appointees, they've also rejected, actually, in those same cases, a majority of the claims that have been brought challenging the act. So you kinda have to understand the politics of judicial decision making as working mostly in those cases that are the most ideologically charged and unresolved by existing law. In the vast majority of cases that go into the federal court system the party of the judge is completely irrelevant to predicting what the judge is going to do.

  • 13:18:45

    JOONDEPHBut it's precisely these sorts of cases where the political and ideological stakes are so high and the law is not clear that we're most likely to see party affiliation be a decent predictor. And so far it has been. You see a general party alignment at least on the issue of the individual mandate.

  • 13:19:05

    FISHERWe'll continue our discussion about the health care law and then come back with some talk about the splendors of British foods -- splendors of British food after a break. And you're listening to the Kojo Nnamdi Show. I'm Marc Fisher sitting in for Kojo.

  • 13:21:02

    FISHERWelcome back. I'm Marc Fisher of the Washington Post sitting in on "The Kojo Nnamdi Show." We're talking about the Obama healthcare law and challenges to its constitutionality with Bara Vaida of "Kaiser Health News" and Brad Joondeph of Santa Clara University, where he is a professor of law, who is keeping an eye on the healthcare litigation.

  • 13:21:23

    FISHERAnd professor, we have an e-mail from Manny in Bowie, Md., who says, "Last week, when discussing his deficit reduction plan, President Obama talked about a Medicare panel that he hoped would help slow costs. It's my understanding that one healthcare lawsuit out in Arizona addresses these panels directly. Is that the case?"

  • 13:21:42

    JOONDEPHYes, there is. That lawsuit, at this stage, is waiting a judge's decision about a temporary injunction. That case actually raises a number of issues that aren't being raised in any of other lawsuits involving separation of powers, questions in the appointment and removal of some of the members of that board and some of the rules concerning how the law is amended in the law.

  • 13:22:11

    JOONDEPHThat lawsuit is in the very, very early stages. So it's kind of hard to say where that is going. I don't think the challenges are that serious, from what I've seen of the lawsuit, but it's going to take a while to know for sure. The other thing that could happen is that if a court is to invalidate the individual mandate provision, the next question that a court has to resolve is what happens to the rest of the act.

  • 13:22:41

    JOONDEPHThe Affordable Care Act is 2,700 pages long and so you have this question of severability. Really, it's possible that any provision in the act could be invalidated if a court finds, well, the individual mandate is so important to the workings of the entire act that we're going to have to declare the entire act unconstitutional and have Congress start over again.

  • 13:23:06

    JOONDEPHAnd if that were the case, completely independent of this challenge out in Arizona, a court could invalidate this...

  • 13:23:14

    FISHEROkay. And Bara, there's been obviously a lot of public debate. There was the whole death panels notion about the Obama plan...

  • 13:23:23

    VAIDAWhich there aren't any death panels.

  • 13:23:25

    JOONDEPHRight. But, you know, if you look at what had been the hot button moments in this whole debate, has the public calmed down over this or do you think there's still strong opposition out there?

  • 13:23:38

    VAIDAI think that people still don't totally understand what's in the law and it's because it's very, very complicated and so it is difficult to understand. And I think healthcare's very emotional and, you know, goes to people's lives so it's very easy to confuse people. And it's so complicated, as I said, you really have to spend some time reading and thinking about it to understand the law.

  • 13:24:01

    FISHERWell, speaking of trying to understand it, Randy tweets to ask, "Aren't all Americans technically required to pay for health insurance anyway since we already have to pay for the poor who can't be turned away from an emergency room?"

  • 13:24:13

    VAIDAI mean, I think that's a really important point. For those who support the law, the issue is, you know, that the law requires insurers must sell their product to an adult with pre-existing conditions and that to make that work, people must buy insurance for risk pooling. So there are a lot of healthy people in the risk pool.

  • 13:24:38

    VAIDARight now, there's about 50 million people who are uninsured and we all end up paying for them when they end up in the emergency room. We're spending about $46 billion to care for the uninsured and so we're all paying for that. So as much, I did say that it is going to be expensive, we'll all be more equally sharing in that cost and potentially our premiums for people could actually go down because there'll be more share costs.

  • 13:25:06

    FISHEROkay. Let's go to Alice in Washington. Alice, it's your turn.

  • 13:25:10

    ALICEMy question is whether there is a parallel with social security and the healthcare law, whether the requirements that Americans essentially purchase retirement insurance is a parallel?

  • 13:25:28


  • 13:25:29

    JOONDEPHYes, well, I mean, one of the things that the last two questions both raise is that there's a bit of an irony here. In the sense that if Congress had done the much more liberal thing and enacted a single payer law, from a constitutional perspective, it would be clearly lawful under Congress's power to tax and spend.

  • 13:25:51

    JOONDEPHWhat is constitutionally problematic is that this was sort of a scaled down version in which individuals that Congress decided to preserve, for the most part, the private market in health insurance and require people to purchase their insurance from private vendors.

  • 13:26:09

    JOONDEPHAnd so there is an irony there that if it were modeled instead like social security where it was mandatory, everyone was in, everyone paid taxes to support it and then everyone qualified, it would plainly be constitutional unless we were going to undo 70 years worth of Supreme Court precedent.

  • 13:26:28

    FISHERThat's Brad Joondeph, a professor of law at Santa Clara University. You can find a link to his blog on the healthcare litigation on our website,, where you can also find some of Bara Vaida's reporting on the healthcare lawsuits. She is a contributing writer for "Kaiser Health News." Thanks to both of you for joining us today as we talk about the Affordable Care Act.

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