Members of Colorado’s congressional delegation from both sides of the aisle and Republican Attorney General John Suthers scored sought-after seats this week at the U.S. Supreme Court’s historic hearings on President Barack Obama’s federal health care law, listening in as the high court weighed questions that could lead to overturning the controversial reforms.
The issues being debated by the court highlight the larger, highly politicized concerns surrounding the most sweeping and dramatic health care policy overhaul the nation has seen in four decades.
The conversation is not isolated to Washington, D.C., but has landed hard in Colorado, with legislation aiming to address some of the most explosive issues, including whether institutions have the right to moral health care objections on the basis of religious grounds, such as requiring contraceptive care. The question has become synonymous with the so-called “War on Women,” a series of controversies both parties are hoping to exploit as the election nears.
But, ostensibly at least, the high court this week was required to put politics aside and focus on only two key legal components in the debate, including whether the court can even rule on the case, and whether the mandate in the law requiring individuals to carry health insurance or pay a penalty is constitutional.
On Monday, the discussion in court focused on an obscure 1867 law known as the Anti-Injunction Act, which bars claimants from asking for a refund on a tax until that tax has actually been paid. The first question the court will need to decide is whether the individual mandate and coverage requirement actually amounts to a tax.
The justices appeared to be leaning toward rejecting the notion the mandate is a tax, which would allow the court to rule on the broader constitutional questions, likely to be in late June when the high court announces decisions on its most prestigious cases. Many of the justices appeared eager to get on with the case and even began asking broader constitutional questions by the end of Monday’s hearing.
Justice Ruth Bader Ginsburg said the case did not seem to rest on a tax issue, arguing, “This is a suit that is challenging the ‘must-buy’ provision, and the argument is made that, if, indeed, ‘must-buy’ is constitutional, then these complainants will not resist the penalty. So what they’re seeking is a determination that … ‘must-buy’ is unconstitutional, and, if that’s so, that’s the end of the case. If it’s not so, they are not resisting the penalty.”
Justice Samuel Alito and Chief Justice John Roberts, however, seemed to agree that a tax was indeed involved, with Roberts stating, “The idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn’t seem to make much sense. It’s a command. A mandate is a command.”
Suthers said he was confident on Monday that the high court was leaning in the direction of not calling the mandate a tax and therefore would consider the broader constitutional questions.
“That’s not the way the Supreme Court is feeling,” Suthers told The Colorado Statesman. “They said, ‘Hey, look, Congress didn’t call it a ‘tax,’ they called it a ‘penalty,’ why should we consider it a ‘tax?’”
Some observers believe conservatives would prefer the case not be decided until after the November presidential election. If the Supreme Court upholds Obama’s most prominent legislation, then Republicans could essentially suffer a defeat, as the GOP has made the mandate the centerpiece of their opposition, dubbing the law “Obama-care.” Even if the Supreme Court overturns the law as unconstitutional, some say, Democrats could use the ruling to argue that Republicans prefer skyrocketing health care costs in the name of conservative, free-market principles.
But U.S. Rep. Doug Lamborn, R-Colorado Springs, who had the honor of attending the hearing on Tuesday, said Democrats have much more on the line. Lamborn said he glanced around the hearing and saw Secretary of Health and Human Services Kathleen Sebelius looking “not so happy.”
“The reason being is because they’re in a lose-lose situation, they have nothing to gain and everything to lose,” Lamborn told The Statesman on Wednesday. “It hurts them politically however it comes out because, if the law’s upheld, that’s going to fire up the Republican base even more, and if the law is struck down, I think that’s going to discourage the Democratic base because this is [Obama’s] signature achievement and it will have evaporated.”
Suthers says he has separated the politics from the case and that he isn’t concerned whether a delay in the case would benefit his party come the November elections. Suthers says he wants the high court to hear the case because of the constitutional issue, which is why he said he joined Colorado with 25 other states in a lawsuit challenging the legislation two years.
“It’s always been my first and foremost goal to be the best lawyer I can,” Suthers told The Statesman on Monday in a phone interview from Washington, D.C., following the first hearing. “The fact of the matter is that when I walked away, I felt it was a very genuine and serious issue. People said it was a frivolous case and that it would go nowhere, but frivolous cases don’t make it to the U.S. Supreme Court.”
The conservative attorney general, who has been pilloried by political foes for entering Colorado into the lawsuit, said it was a spectacular experience to be at the Supreme Court for the historic proceedings. He called the case one of the most important in the nation’s history, ranking it with the landmark Brown v. Board of Education decision on school segregation.
Suthers scored one of only six seats awarded to the state attorneys general represented in the lawsuit. In what was apparently a testy process choosing which attorneys general won seats, Suthers came out victorious.
“I happened to be on a management committee managing this litigation for the states, so it is a real honor and a privilege to be here,” said Suthers.
“There were thousands and thousands of people in front of the court,” he added. “Everybody understands that this is a big moment in American jurisprudence.”
On Tuesday, the court turned to the crux of the debate, which is whether the individual mandate is constitutional. The lawsuit argues that Congress doesn’t have the authority to regulate interstate commerce in such a way to force consumers to carry health insurance or otherwise pay a penalty. The mandate takes effect in 2014, when nearly all Americans will be required to carry health insurance or face penalties that could run as high as $700 a year.
If the provision establishing an individual mandate falls, then the entire health care law could be in jeopardy, since many of its other provisions rely on a large insurance pool — including younger and healthier Americans — to lower overall costs.
It is on the individual mandate question that the nine justices appeared sharply divided, with the court’s four Democratic appointees appearing to lean toward upholding the law, while Republican appointees Justices Antonin Scalia and Samuel Alito appeared to join with Justice Clarence Thomas sounding prone to reverse the provision. Chief Justice Roberts and Justice Anthony Kennedy are emerging as the swing votes in the case, though court observers caution against predicting outcomes based on questions posed during hearings.
An argument made by the law’s opponents is that if the individual mandate is constitutional, then the government could foreseeably require a multitude of commerce purchases, such as imposing a mandate to purchase healthy foods or treadmills to combat heart disease.
Justice Scalia grilled the Obama administration’s attorney, Solicitor General Donald Verrilli, Jr., asking him, “It may well be that everybody needs health care sooner or later, but not everybody needs a heart transplant, not everybody needs a liver transplant. Could you define the market so that everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli?”
Verrilli struggled with several questions, stumbling over some of his answers in an effort to articulate the administration’s position that the mandate merely regulates commerce that already exists because everybody uses health care services.
But he appeared to have the support of several of the court’s liberal members, including Justice Sonia Sotomayor, who argued that the federal government already regulates almost every product.
“There is government compulsion in almost every economic decision because the government regulates so much,” she said.
Ginsburg pointed to the costs associated with the health care market, arguing that fewer people in insurance pools results in higher health care costs for the nation as a whole.
“Those who don’t participate in health care make it more expensive for everyone else,” she said.
But Suthers said he sees the question more appropriately focused on the relationship between the states and the federal government.
“It’s the essence of the case,” he said, “saying nothing less than federalism is at stake.”
“Governments have always regulated economic activities through commerce,” he continued. “This is the first time we’ve punished people for not buying the product or service that we want them to buy.”
His comments resulted in sharp rebuke from Colorado Democrats, who pointed to Suthers’ comments in a release attacking the Republican.
“The Attorney General takes an oath to support the Constitution of the United States and of the State of Colorado,” said state Democratic Party chairman Rick Palacio in a statement, “but John Suthers can’t seem to find time for either while he pushes the latest Republican agenda item.”
U.S. Rep. Diana DeGette, D-Denver, who attended the hearing on Monday, said she believes the high court will uphold the law, noting a popular Democratic argument that the overhaul is designed to save Americans money and improve health care.
“Health care is something every American consumes, and we’ve already had a number of provisions (that are) very popular go into effect,” DeGette told The Statesman. She pointed to provisions that prohibit insurers from rejecting applicants based on preexisting conditions, allow young adults to stay on their parents’ insurance until age 26, lower prescription drug costs and allow for preventative care services.
“The Republicans, they keep saying that they’re going to repeal and replace it, but I haven’t seen a proposal from them to actually give all these wonderful benefits to Americans,” DeGette added.
Lamborn, however, believes reform is possible, but not through government mandates. He has been a leader in his caucus for calling for the repeal and replacement of the federal health care law.
“I am against the law in every possible way, which is why I worked against it before we voted and have ever since then,” he said. “It’s government intrusion into our daily lives. It erodes our freedom, and it does not help health care.”
“You can’t insure 30 to 40 million Americans for free,” Lamborn continued. “Right now all Americans do get emergency treatment, so we’re not talking about people suffering from that. But to go to a doctor, we do have a social safety net in place, and there has to be a role for personal responsibility.”
Debate lands in Colorado
The federal health care debate landed in Colorado almost immediately, especially last year with the passage of Senate Bill 200, a law that began the process for implementing a health care insurance exchange in Colorado. The legislation caused House Majority Leader Amy Stephens, R-Monument, heartburn for sponsoring the measure, which some conservatives attacked as an extension of Obama’s health care law.
The federal law requires implementation of state exchanges but gives states flexibility in developing the exchanges. Colorado health care exchange officials are still in the process of establishing a website that will allow Coloradans to purchase and compare insurance from a large pool, with the hope of lowering costs.
Lamborn, however, said he still has concerns with the concept of health care exchanges as it relates to the federal law, though he would not comment specifically on SB 200.
“Insurance exchanges can be used as a part of the scheme to implement Obamacare,” he said. “So, although there might be some positive benefits, that’s one big, big negative I’m concerned about.”
At the Legislature this year, state Rep. Marsha Looper, R-Calhan, who is challenging Stephens in a heated primary in Colorado Springs’ House District 19, ran legislation to repeal SB 200 if federal health care law is repealed or the U.S. Supreme Court rules that any part of it is unconstitutional. Looper’s measure died in the Democratic-controlled Senate.
There have been a host of other bills this year at the Legislature addressing the federal health care law, including House Resolution 1003, sponsored by Rep. David Balmer, R-Centennial, which was backed by the Republican-controlled House in January. The resolution calls for a constitutional convention to amend the U.S. Constitution to repeal federal health reform.
In addition, Sen. Morgan Carroll, D-Aurora, pushed through the Senate a bill that would require hospitals in Colorado to disclose to patients services don’t offer due to religious or moral beliefs, such as abortions, some kinds of contraception and various end-of-life measures. But the House State, Veterans and Military Affairs Committee killed the bill on a Republican party-line vote.
Just this week, the Senate State, Veterans and Military Affairs Committee addressed the issue of religious and moral objections in health care, backing Senate Memorial 3, sponsored by Sen. Tim Neville, R-Littleton.
The proposal asks the Legislature to send its support to Congress for the so-called “Blunt Amendment,” which seeks to address a mandate in the federal health care law requiring employers to cover contraception without co-pays. U.S. Sen. Roy Blunt, R-Mo., has proposed an amendment that would allow insurers to opt out of providing contraceptive coverage over religious or moral objections. Senate Democrats have already blocked the amendment, but the issue is likely to pop up again, as there is a companion measure in the GOP-controlled House.
On Monday, the Senate State, Veterans and Military Affairs Committee sent Neville’s measure to the full Senate for debate on a 3-2 vote. Sen. Betty Boyd, D-Lakewood, who adamantly opposes the proposal — calling it a “war on women” — voted to send the bill to the full Senate, she said, in the spirit of debate.
“I agree that this bill needs a wider discussion, which is not saying I’m going to commit to this thing on the floor,” she told the committee. “I move to the Committee of the whole because I think that the discussion needs to be wider.”
That said, Boyd quickly added, “This initiative is a shot across the bow in the war against women.”
DeGette, who co-chairs the Congressional Pro-Choice Caucus, maintains that much of the health care debate has turned into an attack on women. She said she is striving at the federal level to make sure proposals like the Blunt Amendment don’t see the light of day.
“I’m working on making sure that people realize how extreme and dangerous that is,” she said.
But Neville insists the issue is not about contraceptive rights or a “war on women.” Instead, he said, it’s simply about protecting rights afforded under the Constitution.
“What benefit does freedom of religion give us if we cannot adhere to our deeply held beliefs?” Neville asked.