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More Legal Experts Believe Roberts Will Uphold Affordable Care Act Than Kennedy

Jonathan Cohn notes an odd quirk about a recent American Bar Association poll showing that 85 percent of legal experts polled by the ABA believe that the Affordable Care Act will be upheld by the Supreme Court. The same experts are more likely to pick conservative Chief Justice John Roberts than slightly less conservative Justice Anthony Kennedy as the most likely conservative to uphold the law:

The experts ABA surveyed were unanimous in predicting that the four liberal justices (Stephen Breyer, Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg) would vote to uphold and that Clarence Thomas would vote to strike it down. Fifty-three percent said Anthony Kennedy would join the liberals, but a higher proportion, 69 percent, thought Chief Justice John Roberts would join the majority. Majorities of about 60 percent predicted that the other two conservatives, Samuel Alito and Antonin Scalia, would determine the law is unconstitutional.

Although this view of Roberts and Kennedy is counterintuitive, it is not exactly surprising. In 2010, the Supreme Court handed down a case called United States v. Comstock which upheld a law that was very much at the margins of Congress’ lawful authority. In that opinion, Roberts took a somewhat more expansive view of federal power than Kennedy.

Because the Constitution gives Congress authority to “regulate commerce,” the United States has broad, sweeping authority over economic matters, but far more limited authority over non-economic regulation. Comstock upheld a federal law allowing for the indefinite detention of some sex offenders — a law which has virtually nothing to do with the nation’s economy. Nevertheless, Chief Justice Roberts joined the Court’s four more moderate members in a majority opinion upholding this non-economic law. Justice Kennedy wrote a separate concurrence which upheld the law as well, although on somewhat narrower ground.

Both the opinion Roberts joined and Kennedy’s concurrence support the conclusion that the ACA is constitutional. Moreover, unlike the law in Comstock, the ACA is very much at the core of Congress’ lawful authority because the Affordable Care Act regulates a market that comprises one-sixth of the national economy. Nevertheless, the fact remains that, in the only major federal power case that both Roberts and Kennedy sat on together, Roberts took the more expansive view of federal power.

Economy

GOP Congressman Featured In Paul Ryan’s Budget Video Votes Against Paul Ryan’s Budget

On Monday, House Budget Committee Chairman Paul Ryan (R-WI) released a video introducing his budget proposal. In it, Ryan narrates his plan as the video cuts to various shots of Americana, as well as members of Congress examining the budget. At 2:12 in the video, Rep. Reid Ribble (R-WI) discusses the plan with Rep. Tim Huelskamp (R-KS), who nods approvingly:

Rep. Tim Huelskamp (R-KS), left, was featured in Paul Ryan's budget video, but voted against the plan last night

Last night, Huelskamp had a chance to vote on Ryan’s proposal as a member of the House Budget Committee. Apparently, the Kansas Republican did not like what he saw. The Tea Partier broke ranks with all but one other Republican on the committee and voted against Ryan’s budget. Democrats were unanimous in their opposition.

Huelskamp explained his opposition to the budget during a panel on Tuesday. “It’s not good enough,” the Tea Party freshman said. “Its just another promise that I’m afraid will be broken.”

Though just a few days old, cracks are already emerging in the Republican dam. Despite a 22-16 advantage on the Budget Committee, the bill eked out of the Budget Committee by just a single vote (19-18) after Huelskamp and fellow freshman Rep. Justin Amash (R-MI) voted with the Democrats. Rep. Jason Chaffetz (R-UT) missed the vote. Another freshman, Rep. Mick Mulvaney (R-SC), backed the budget last night and ensured it would not die in committee, but told The Hill that he may vote against it once it comes to the floor.

It’s plain to see why Ryan’s plan would be a disaster for the country. The budget is a reverse-Robin Hood plan that takes from the poor in order to give $3 trillion to corporations and the rich. It purports to reduce the debt while actually increasing it. It ends Medicare as we know it, takes away health coverage for 30 million Americans, and forces seniors to pay even more for their health care. Though Huelskamp, Amash, and Mulvaney may have their own objections to the Ryan budget, there are certainly plenty to go around.

VA Attorney General Ken Cuccinelli Backtracks On Ignoring Affordable Care Act

Attorney General Ken Cuccinelli (R-VA)

Attorney General Ken Cuccinelli (R-VA)

Right-wing Attorney General Ken Cuccinelli (R-VA) does not like the Affordable Care Act. In addition to his challenge to the law in federal court, he told a Politico reporter earlier this month that there was little the federal government could do to states if they refused to implement the law.

The Washington Post quoted the interview:

In a brief interview at the Republican Attorneys General Association meeting, Cuccinelli said it would be “contrary to the law” not to implement it. But he pointed out that it might not be easy for the federal government to force states to comply if they continued to resist. “It’s not like there’s criminal penalties out there — it becomes a power struggle,” he said. Cuccinelli noted that it would not be the first time that states have tried to obstruct federal laws, pointing out that states resisted complying with the Alien and Sedition Acts and fugitive slave laws. “There have been periods of time when states have just thrown their hands up and said, ‘We’re not going to do this,’” he said. “It’s still possible, but it’s outside the expected legal structure.

But when pressed on this subject yesterday, Virginia Organizing caught him striking a rather different tone — saying “I expect everyone to obey the law,” if it is upheld by the Supreme Court.

Watch the video:

It’s wonderful that Cuccinelli now wants everyone to obey the law. Perhaps he might start with himself.

NEWS FLASH

House Votes To Repeal IPAB | The House of Representatives voted today to repeal the Affordable Care Act’s Independent Payment Advisory Board (IPAB) by a vote of 223-181. Seven Democrats voted to repeal the board, while 10 Republicans opposed the effort. The goal of the board is to recommend ways to trim Medicare costs when outlays exceed certain targets. Opponents claim the board would lead to “rationing,” despite the fact that Rep. Paul Ryan (R-WI) proposed similar panels in his 2009 health plan. The bill is expected to fail in the Senate, and the White House had threatened a veto.

-Zachary Bernstein

NEWS FLASH

Women Knit Uteruses For Lawmakers | An organization called Government Free VJJ is encouraging women to knit uteruses and send them to male members of Congress with the note, “Dear Men in Congress: If we knit you a uterus, will you stay out of ours?” Supporters can either send the knitted organs directly to their congressional representatives or to project organizers who will hand deliver them. And as debate continues in Arizona about a controversial bill that would allow employers to dictate if an employee’s insurance could cover contraception, one woman says she will begin sending a knitted uterus to Arizona legislators after she sends them to Arizona’s congressional delegation. Watch a local news report about the bill and the knitting:

Report Proves Health Reform Is Here To Stay: 49 States Have Already Taken Action Supporting Its Implementation

As the Supreme Court prepares to take up the question of the constitutionality of health care reform, a new report finds that almost all the states have begun implementing parts of the Affordable Care Act — suggesting that even the court’s rejection of the measure won’t be able to stop many of the law’s big changes.

According to a new survey from the Commonwealth Fund, “49 states and the District of Columbia have already taken action supporting the law’s implementation, such as passing legislation, issuing regulations or other guidance, or actively reviewing insurer filings.” Between January 1, 2010, and January 1, 2012, “23 states and the District of Columbia had taken new legislative or regulatory action on at least one of these reforms” — which include changes like expanding dependent coverage for young adults up to age 26, prohibiting lifetime limits on health benefits, and phasing out annual dollar limits on health benefits — and an additional 26 states had “taken other action to promote compliance with the reforms, such as issuing bulletins to insurers.” States took the following actions:

– 12 states: Connecticut, Hawaii, Iowa, Maine, Maryland, Nebraska, New York, North Carolina, North Dakota, South Dakota, Vermont, and Virginia—passed new legislation or issued new regulations that addressed all 10 of the reforms: expanding dependent coverage for young adults up to age 26, prohibiting lifetime limits on health benefits, phasing out annual dollar limits on health benefits, prohibiting preexisting condition exclusions for children under age 19, prohibiting rescissions (cancelling insurance, except in cases of fraud or intentional misrepresentation), covering preventive services without cost-sharing, expanding coverage of emergency services, allowing choice of primary care provider, allowing choice of pediatrician, and allowing access to obstetricians and gynecologists without a referral.

– The District of Columbia and 11 states: California, Delaware, Indiana, Louisiana, Michigan, New Hampshire, New Jersey, Oregon, Utah, Washington, and Wisconsin—passed a new law or issued a new regulation on at least one early market reform.

– 15 states: Alabama, Arkansas, Colorado, Florida, Georgia, Illinois, Kentucky, Massachusetts, Minnesota, Missouri, Montana, New Mexico, Pennsylvania, South Carolina, and Texas—issued new subregulatory guidance, such as a bulletin to advise insurers of the reforms.

– 11 states: Alaska, Idaho, Kansas, Mississippi, Nevada, Ohio, Oklahoma, Rhode Island, Tennessee, West Virginia, and Wyoming—reported that regulators were actively reviewing insurer filings for compliance with the reforms even though the state had not otherwise passed a new law or issued new regulations or other guidance.

– Only Arizona had taken no action.

Indeed, it seems that the law has already created an unstoppable momentum towards change. As Jeffrey Young pointed out yesterday, “health insurance companies, hospitals and the rest of the health care system already have made deep changes to the way they operate: adding new consumer protections to health plans, altering the way medical providers get paid and beginning to work closer together to improve health and save money” — and it’s very unlikely that they will take away these new benefits or obtain efforts to modernize their operations (in an effort to reduce spending). Regardless of the Supreme Court’s anticipated ruling on the law in late June, the changes the ACA inspired are here to stay — in one form or another.

Kay Bailey Hutchison Defends Planned Parenthood, Says Organization Provides Critical Preventive Care

During an interview on MSNBC this morning, Sen. Kay Bailey Hutchison (R-TX) voiced rare support for Planned Parenthood, noting that the organization provides much-needed preventive care to low-income women. The outgoing Texas senator also condemned a recently-enacted Texas law that prohibits Planned Parenthood from participating in the Medicaid program and providing health care services to some 130,000 women. The controversial measure has led the federal government to officially stop funding the Texas Women’s Health Program, but Gov. Rick Perry (R) insists that the state will fill the funding gap using state funds.

Hutchison criticized Perry’s decision to turn his back on the federal dollars, which she argued, provide critical care to lower-income women:

HUTCHISON: We cannot afford to lose the Medicaid funding for low income women to have health care services. We cannot. We keep turning back federal funds that every state gets and then try to find money in our budget, which is already being cut in key areas like education. I do think that the governor needs to sit down with the federal government and work it out so we can have our share — our fair share not more — of money for Medicaid to help low-income women have their health care services.

TODD: So it sounds like you think he should not be excluding Planned Parenthood?

HUTCHISON: I think Planned Parenthood does mammograms, they do so much of the health care — the preventive health care and they’re doing that, we need to provide those services, absolutely.

Watch it:

Obama: Romney Is ‘Pretending He Came Up With Something Different’ Than The Individual Mandate

During an interview with American Public Media’s Marketplace, President Obama defended the individual health insurance mandate and reiterated that likely GOP presidential nominee Mitt Romney enacted a very similar policy as governor of Massachusetts. “[W]e designed a program that actually previously had support of Republicans,” Obama told host Kai Ryssdal, “including the person who may end up being the Republican standard bearer and is now pretending like he came up with something different.”

Obama also predicted that the Supreme Court — which is scheduled to hear oral arguments on the constitutionality of reform on Monday — will uphold the law and that “it will be very hard for any governor to explain why it is that they’re not giving people…an opportunity to get cheaper health insurance, better deal, more protections because of some ideological argument that they’re having with the president.” “And when people see that in fact it works, it makes sense — as it’s, by the way, working in Massachusetts — then I think a whole bunch of folks will say ‘Why aren’t we trying it as well?’” he added. Listen:

Morning CheckUp: March 22, 2012

Santorum wants to accelerate Paul Ryan’s budget cuts: “Santorum says he would be more aggressive in achieving budget savings, including by doing away with cost-of-living increases in federal grants to states for Medicaid and food stamps.” [AP]

Health law could hinge on wheat, pot and broccoli: “Wheat farming, pot growing, guns near schools and a violence-against-women law all produced high court precedents key to the federal government’s power to regulate interstate commerce — and to whether Congress can require most Americans to get health insurance or pay a fine.” [Politico]

Republican governors unveil their own solutions to health crisis: “As the two-year anniversary of federal health care reform approaches, Utah Gov. Gary Herbert was in the nation’s capital Wednesday touting states’ ability to find their own solutions.” [Deseret News]

Arizona lags in implementation of health law: “Despite the sweeping federal changes included in the reform law, a new Commonwealth Fund study notes that states are implementing the federal laws at varying speeds — or, in the case of Arizona, not at all.” [Modern Healthcare]

Aspirin and cancer risk: “Regular aspirin use might reduce the risk of cancer by as much as 38 percent, according to a big new review of research on the issue. But “might” is the key word here, other scientists say. And even if it works, that benefit comes with costs, including an increased risk of ulcers and internal bleeding.” [NPR]

Abortion foes perform live ultrasounds in Idaho Capitol: “The Idaho Capitol was part medical clinic, part reality TV show and all cultural battlefield on Wednesday, as an anti-abortion advocate secured a basement meeting room to conduct live ultrasound procedures on six women before a mostly female audience of 150.” [AP]

Health law guarantees coverage for young people, HHS report finds: “President Obama’s healthcare reform law not only helps young adults get coverage but also ensures they’re able to keep it over time, the administration said in a new report released Wednesday to mark the law’s second anniversary.” [The Hill]

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