March 27, 2012
The Supreme Court opened its review of the national health-care overhaul on Monday, Mar. 26, the first of three days of oral arguments on the 2010 law.
|Students attend audio broadcasts of the arguments, sponsored by the Harvard Federalist Society.|
Over the three days of debate, the Harvard Federalist Society sponsored audio broadcasts of the Supreme Court oral arguments on healthcare reform in the Ames Courtroom at HLS.
In light of the historic arguments, law schools professors at HLS and elsewhere in the Boston area have incorporated the debate into their classrooms (see story excerpt below), and, in the media, a number of HLS faculty members weighed in on the case (read their opinions below).
The Boston Globe
By Boston Globe staff writer Martine Powers: Professors at law schools across the region are incorporating the Supreme Court health care debate into their curriculum, assigning hot-of-the-presses legal briefs to classes and listening to audio recordings of court hearings. The focus on the case in the classroom is another step in law school professors taking classes out of their decades-old case books and into the real world. “It’s a growing percentage of what law school is all about,’’ said Robert Greenwald, a clinical professor law at Harvard Law School. ... Visit boston.com to read the full article (requires subscription) »
The Daily Beast
by Daily Beast writer Matthew DeLuca: Over the three days of argument devoted to the health-care law, the Supreme Court held the attention of Americans as it has not for more than a decade, sparking protests, debate, and prophetic huffings and puffings from pundits of all political stripes. ... The Daily Beast queried seven law and public-policy experts [including I. Glenn Cohen, assistant professor of law at HLS and co-director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics] on where they think the justices are likely to land. Read more »
The Daily Beast
An opinion piece by HLS Professor Einer Elhauge: Starting Monday, the Supreme Court will hear a grueling six hours of oral argument on the defining case of this term, and one of the most prominent in decades: whether the Affordable Care Act’s requirement that everyone buy health insurance—known as the health-care mandate—is constitutional.
The case has provoked an unprecedented 136 briefs for and against its constitutionality. Of all these, the two that everyone seems to be talking about are the opposing briefs by two groups of economists. When big-name economists collide, how can we sort out which are right? Read more »
Day two of a roundtable discussion featuring Professor Elhauge: ... Although the Solicitor General had other good arguments, to me the most disappointing thing about his argument is that he never offered a direct rebuttal to the assertion that it would be unprecedented for Congress to compel individuals to buy something. In fact, this assertion is quite false. ... Read more »
The National Law Journal
The oral arguments on the health insurance mandate did not go especially well for the government, in part because it mistakenly chose to accept the opponents’ erroneous framing that it would be unprecedented for Congress to require individuals to purchase something. But even though it needlessly gave itself an uphill burden by accepting this mistaken framing, the comments of Chief Justice John Roberts Jr. and Justice Elena Kagan suggested a compromise that might still save the health insurance mandate. ... Read more »
A Mar. 25 opinion piece by HLS Professor Noah Feldman: … It is exceedingly rare for the Supreme Court actually to be at the center of events in government. But starting on Monday, for a few days, it will be. The signature accomplishment of Barack Obama’s administration is on the line. To strike down the Affordable Care Act, the court would have to announce that mandatory insurance coverage is, quite literally, beyond the power of the government. … If the mandatory coverage provision goes, so does the whole program. Read more »
From the Mar. 27 edition of Bloomberg View: What’s the difference between broccoli and health insurance? The fate of President Barack Obama’s health-care plan rests on this question, which Supreme Court Justice Antonin Scalia pressed on Solicitor General Don Verrilli. There is a good answer. Unfortunately, in oral arguments before the court Tuesday, Verrilli faltered in giving it. Read more »
HLS Professor Charles Fried says that the health care law is constitutional.
At this point, it seems likely that Obamacare’s fate will hinge on whether Justice Roberts or Justice Kennedy come to believe there is a “limiting principle” under the government’s theory of the individual mandate. … So here’s a limiting principle: Under the mandate, Congress still does not have the power to regulate activity or inactivity that doesn’t have a substantial impact on interstate commerce. Read more »
The Daily Beast
Among the hardest roles to play in Tuesday’s made-for-radio drama was that of solicitor general. In most Supreme Court cases, which are not followed by all the media or inspire rallies in the Supreme Court plaza, the solicitor general is treated with great deference by the justices not because of his title but because he is trusted to give on behalf of the government a sober, accurate, measured presentation that is scrupulously fair to the other side of the argument and insists on stating the strengths and weaknesses of his own case. ... Read more »
From the Mar. 27 edition of Harvard Gazette.
The U.S. Supreme Court is taking up the controversial issue of national health care reform this week, in a major case that challenges the legality of the Obama administration’s most significant piece of social legislation, a far-reaching law that aims to overhaul the nation’s health care system and provide coverage to millions more Americans.
The court is hearing oral arguments over three days. One observer will be Laurence Tribe, Harvard’s Carl M. Loeb University Professor, and a former legal adviser to the Obama administration. Gazette reporter Colleen Walsh caught up with the constitutional scholar shortly before he left for Washington, and asked his thoughts on the landmark case. Read more »