Elena Kagan and Health Reform

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During Elena Kagan’s Senate confirmation hearing, the American public will get a sneak peak of a particularly contentious case that may reach the Supreme Court – the constitutionality of the new health reform law. Several Republican senators have already indicated they plan to ask Kagan about her view of the law’s mandate that everyone purchase insurance. This is not surprising. Health reform is still a hot-button issue that will play a significant role in congressional races this fall. And in the past two months, governors and attorneys general in 20 states have said they will challenge the individual mandate in court.

What is noteworthy, however, is a New York Times piece today by Kevin Sack that seems to assert these plaintiffs have a chance of winning – or at least getting to make their case before the nation’s highest court. According to Sack, who writes “there is a broad assumption that the health care law will earn Supreme Court review”:

Some legal scholars, including some who normally lean to the left, believe the states have identified the law’s weak spot and devised a credible theory for eviscerating it.

The power of their argument lies in questioning whether Congress can regulate inactivity — in this case by levying a tax penalty on those who do not obtain health insurance. If so, they ask, what would theoretically prevent the government from mandating all manner of acts in the national interest, say regular exercise or buying an American car?

The Administration has consistently said it’s confident the individual mandate will stand up to a court challenge and Sack notes the health reform law is written to specifically to address this:

Congressional bill writers took steps to immunize the law against constitutional challenge. They asserted in the text that the insurance mandate “substantially affects interstate commerce,” the Supreme Court’s standard for regulation under the Commerce Clause. They labeled the penalty on those who do not obtain coverage an “excise tax,” because such taxes enjoy substantial constitutional protection. Supportive analyses by prominent law professors were read into the Congressional Record.

Left-leaning commenters have been saying that the state lawsuits against the individual mandate lack any legal basis. Amanda Terkel at Think Progress, for instance, calls constitutional challenges to the health reform law a “fringe view,” adding

The right-wing belief that health care reform is unconstitutional has no legal foundation. As University of California, Irvine law professor Erwin Chemerinsky has stated, “Those opposing health care reform are increasingly relying on an argument that has no legal merit: that the health care reform legislation would be unconstitutional. There is, of course, much to debate about how to best reform America’s health care system. But there is no doubt that bills passed by House and Senate committees are constitutional.”

But for every assertion like this, there is one from the other side and it may ultimately be up to the Supreme Court to decide which is valid. As she crams for her upcoming Senate confirmation hearing – preparing responses on topics like abortion and the right to bear arms – Kagan has no doubt added the health reform law to her list.

Former star Swamplander Karen Tumulty, now at the Washington Post, sees even broader implications of Obama nominating Kagan at a time his legislative agenda is under fire for over-reaching. In a story today, Karen says some conservatives believe nominating Kagan – currently the government’s chief lawyer – “sounds suspiciously like stacking the deck.” According to Karen:

By choosing his administration’s chief legal advocate for an open seat on the court, President Obama triggered a hailstorm of conservative accusations that he is seeking an automatic vote in favor of his legislative agenda.

Expect to see more on this theme when Kagan appears before the Senate judiciary committee.