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The United States Supreme Court will hear arguments on some challenges to the Affordable Care Act in March, 2012, setting up the possibility of a ruling before the 2012 general election.

Via SCOTUSBlog:

The Court will hold two hours of argument on the constitutionality of the requirement that virtually every American obtain health insurance by 2014, 90 minutes on whether some or all of the overall law must fail if the mandate is struck down, one hour on whether the Anti-Injunction Act bars some or all of the challenges to the insurance mandate, and one hour on the constitutionality of the expansion of the Medicaid program for the poor and disabled. The Court chose those issues from appeals by the federal government, by 26 states, and by a business trade group. It opted not to review the challenges to new health care coverage requirements for public and private employers. It left untouched petitions by a conservative advocacy group, the Thomas More Law Center, and three of its members, and by Liberty University and two of its employees.

As SCOTUSblog notes later in the post, five and a half hours for oral arguments is unprecedented. Arguments on Citizens United were four hours long. It's clear the court realizes the importance of the questions before it, though not all questions are being considered.

Overall, it appears that the court has chosen to consider the Affordable Care Act in the context of the interstate commerce clause and states' rights, which frames not only the arguments over health care, but sharp differences between conservatives and liberals about the role of government in individuals' lives as well as individual states.

SCOTUSBlog:

Beyond the Court, there is a hot political debate going on across the country now on federal vs. state power, and the Court’s coming decision is likely to become an issue in that debate — especially since the final ruling is expected to emerge from the Court in June, in the midst of this year’s presidential and congressional election campaign.

From a political standpoint, it would appear that a ruling striking down the individual mandate would certainly energize a movement to move to a single payer model for everyone or at the very least, a public option, given that insurers would be bound to not exclude or charge exhorbitant rates for individuals with pre-existing conditions. If there is no individual mandate, it's likely that insurance would become unaffordable for everyone because of the adverse selection issues. If they uphold it, 2012 becomes even higher-stakes poker for conservatives, who will try to retake the House, Senate and White House to repeal the entire law.

As Ezra Klein notes in the video, it is possible they could simply say no one has standing to bring a case until the law is actually effective, too. If they were to do that, it would set up a situation where the provisions of the law become more popular as they become effective, which would make it more difficult for conservatives to repeal or limit it.

I will update this with more analysis as it's available.

Republicans are always happy when any attempt to help ordinary people is struck down by the corporate-owned courts. So this one's almost certainly going all the way to the Supreme Court!

Reporting from Washington— A federal appeals court struck down a pillar of President Obama's national healthcare law, ruling Congress does not have the power to require all Americans to buy insurance and setting the stage for a Supreme Court decision ahead of the 2012 election.

The 2-1 decision is a victory for Republican leaders in 26 states who challenged the law last year, testing whether the signature accomplishment of Obama's presidency would stand.

The Atlanta-based judges echoed the complaint that the mandate represents an "unprecedented" expansion of federal power.

"The individual mandate is breathtaking in its expansive scope," two judges of the 11th Circuit Court of Appeals wrote in their 207-page majority opinion.

Even during the Great Depression or World War II, "Congress never sought to require the purchase of wheat or war bonds, force a higher savings rate or greater consumption of American goods," they observed. Though Congress may regulate those who buy insurance, it may not regulate those who "have not entered the insurance market and have no intention of doing so," they said.

[...] The Atlanta-based court has a conservative reputation and had been seen as the best forum for those challenging the law. The majority was made up of Chief Judge Joel Dubina, an appointee of President George H.W. Bush, and Judge Frank Hull, a female appointee of President Clinton. The dissenter, Judge Stanley Marcus, was also a Clinton appointee.

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Credit: Boston Globe/New York Times

Ten years ago, George W. Bush was sworn in as America's first MBA President. Now, Mitt Romney wants to be the second. Two years after President Bush completed the worst economic record since Herbert Hoover, Romney the perpetual White House hopeful declared, "I spent my career in the private sector. I know how jobs are created and how jobs are lost." Especially, it turns out, the part about how jobs are lost.

Addressing New Hampshire Republicans Saturday, Governor Romney decried the state of the U.S. economy. "This is the Obama Misery Index, he said, "and it is at a record high. It's going to take more than new rhetoric to put Americans back to work--it's going to take a new president." In a Boston Herald op-ed Tuesday, Mitt regurgitated both his Obama Misery Index and "I know a thing or two about how jobs are created and how they are lost" talking points. At CPAC last month, Romney was clear about who that new president should be:

If I decide to run for President, it won't take me two years to wake up to the job crisis threatening America. And I won't be asking Tim Geithner how the economy works-or Larry Summers how to start a business.

If Mitt's line sounds familiar, it should. In his latest incarnation, the man Michael Kinsley deemed "the most transparent candidate" is once again campaigning to be America's CEO.

On the stump in Florida three years ago, Romney made the case that his Harvard MBA, his tenure at Bain, his Salt Lake Olympics experience and his stewardship of Massachusetts made him uniquely qualified him to lead during tough economic times. The multimillionaire venture capitalist told Florida voters:

"I know how America works because I spent my life in the real economy...I won't need a briefing on how the economy works. I've been there. I know how the economy works."

Days earlier, Romney offered the reader's digest version of his resume:

"I've spent my life, 25 years...in the world of business. I know why jobs come and go."

As his record shows, Mitt Romney is all too familiar with why jobs go - out of state, out of the country or just go altogether.

In 1994, Romney's career as a vulture capitalist boomeranged against him in his Senate race against Ted Kennedy. The tale of SCM, a northern Indiana-based stationery company purchased by Ampad, a firm owned by Romney and a group of investors, came to dominate the campaign. As the New York Times recounted, in that instance in the vulture capitalist label was well-earned in the subsequent crackdown on the workers there:

Management has shed 41 of 265 blue-collar jobs, cut wages, tripled some workers' health insurance payments, abolished most of their seniority rights and junked the prior management's union contract, which had two years to run.

Romney's record in Massachusetts also loses some its luster upon closer inspection. While his campaign this week boasted of creating 57,600 jobs during Romney's tenure from 2003 to 2007, Northeastern University economist Andrew Sum pointed out that Massachusetts' performance lagged well behind the national average. As Reuters reported:

"The state lagged the U.S. average during that period in job creation, economic growth and wage increases.

As a strict labor market economist looking at the record, Massachusetts did very poorly during the Romney years, he [Sum] said. "On every measure you've got, the state was a substantial under-performer."

Two weeks ago, the New York Post, surely no friend of Democrats, documented Mitt Romney's career as a vulture capitalist. As John Kosman detailed, Romney didn't merely produce a "spotty jobs record" when he ran Bain Capital. During a time when he retained a controlling stake, his company reaped huge paydays on investments in firms that later went belly up.

For example, the leveraged buyout of medical testing company Dade Behring by Bain and Goldman Sachs in 1994 was followed eight years later by Dade's failure in 2002. But not until Bain Capital had extracted a rich reward:

Bain reduced Dade's research and development spending to 6 to 7 percent of sales, while its peers allocated between 10 and 15 percent. Dade in June 1999 used the savings as part of the basis to borrow $421 million. Dade then turned around and used $365 million from the loan to buy shares from its owners, giving them a 4.3 times return on their investment.

Bain's slash and burn business model didn't end there. As Kosman explained in the Post:

Bain in 1988 put $5 million down to buy Stage Stores, and in the mid-'90s took it public, collecting $100 million from stock offerings. Stage filed for bankruptcy in 2000.

Bain in 1992 bought American Pad & Paper (AMPAD), investing $5 million, and collected $100 million from dividends. The business filed for bankruptcy in 2000.

Bain in 1993 invested $60 million when buying GS Industries, and received $65 million from dividends. GS filed for bankruptcy in 2001.

Bain in 1997 invested $46 million when buying Details, and made $93 million from stock offerings. The company filed for bankruptcy in 2003.

Of course, Romney's tenure at Bain also produced some big wins - and job gains - at firms like Staples and Domino's Pizza. But as it turns out, Romney's old employer was also creating jobs in Iran.

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The SCOTUSblog reports that the Affordable Care Act has survived the first round of court challenges intact. A federal judge ruled today that the mandate is a necessary part of the overall regulatory scheme and falls within Congress's powers to regulate commerce.

This is a lawsuit brought by the Thomas More Law Center, a right-wing Michigan advocacy group who proclaims themselves the "Christian response to the ACLU." They're funded by entities like the DeVos family foundation, Koch Industries and the Cato Institute.

From the ruling, with regard to the individual mandate:

There is a rational basis to conclude that, in the aggregate, decisions to forego insurance coverage in preference to attempting to pay for health care out of pocket drive up the cost of insurance.The costs of caring for the uninsured who prove unable to pay are shifted to health care providers, to the insured population in the form of higher premiums, to governments, and to taxpayers. The decision whether to purchase insurance or to attempt to pay for health care out of pocket, is plainly economic.These decisions, viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers, and the insured population who ultimately pay for the care provided to those who go without insurance.

[...]

The health care market is unlike other markets.No one can guarantee his or her health, or ensure that he or she will never participate in the health care market. Indeed, the opposite is nearly always true.The question is how participants in the health care market pay for medical expenses - through insurance, or through an attempt to pay out of pocket with a backstop of uncompensated care funded by third parties.This phenomenon of cost- shifting is what makes the health care market unique. Far from “inactivity,” by choosing to forgo insurance plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now through the purchase of insurance, collectively shifting billions of dollars, $43 billion in 2008, onto other market participants. As this cost-shifting is exactly what the Health Care Reform Act was enacted to address, there is no need for metaphysical gymnastics of the sort proscribed by Lopez.

Wonkroom has more on the ruling, and next steps.

Angela Braly, the CEO of Wellpoint, called for health care reform at a meeting in Indianapolis.

One of them most powerful women in the nation is calling for health care reform. Wellpoint CEO Angela Braly says she supports guaranteed coverage for everyone - as long as everyone gets and stays covered [...]

"The high and rising cost of health care in America is just not sustainable," Braly said. She said the current system, including Medicare, which is administered by the federal government, was inefficient and promotes quantity over quality. She also said it posed "a real threat to the social and fiscal obligations of the government and to the health and prosperity of the American people."

"We believe insurance companies have a role to play. We can and are making a difference," Braly said. She said Wellpoint's strategy was moving beyond processing claims and managing risk, noting employee incentives when customers get healthy.

Braly says the what worries her most about the plan currently under consideration is the "public option."

This is, essentially, the insurance company-approved argument for health care reform. They see it as forcing everyone to buy their coverage, making refusal to buy their insurance a crime, and offering no competition to their monopoly over it. I'm sure they don't want to see that anti-trust exemption of theirs lifted either, the one that has led to 94% of the individual insurance market becoming "highly concentrated" in the hands of one or two companies.

Braly kept talking about how the current system is inefficient and leads to skyrocketing costs, as if she has no agency over that whatsoever. There are issues with how the fee-for-service system promotes quantity of medical care and not quality, but that's due to the profit incentive, which is exactly the same in the insurance market. Braly's argument seems to be that it's doctors and hospitals at fault for chasing profit in health care, but insurance industry CEOs like her are good samaritans and innocent bystanders who just so happen to do the same thing. If a profit-driven health care system is wrong, then it's pretty much wrong across the board. And she actually advocated for an outcome where insurers would be "free to offer a range of choices," while worrying about a public option... which would just be another choice, one that could deliver quality coverage at a lower cost.

Braly tried to argue that health insurance profits aren't all that big:

According to Braly, the difference between the Medicaid or Medicare payouts and actual costs are shifted to the private plans, costing you $1,500 a year. Add that to the $1,000 a year shifted to the private plans to cover the uninsured and it costs you a total $2,500 a year.

"Sounds a lot like the Fannie Mae for health care and I think we all know how that experiment is going," Braly said [...]

"If you completely eliminated insurance company industry profits which is clearly the aim of some, you would pay for two days of health care in America and in the process you would eliminate the market mechanism to control costs and improve quality of health care being delivered," Braly argued.

I don't know what any of this means. The market mechanism in health care has not controlled costs in America whatsoever, yet throughout the industrialized world we see public programs that control costs and provide better health outcomes. Private industry has begged off completely from limiting health care costs through any means other than denying coverage to their customers and rationing. Health care spending in Medicare and Medicaid is lower than spending through the insurance market. And insurers have used the employer market effectively to confuse employers and employees alike about the true cost of their service. Braly throws out "Fannie Mae" for health care, but the current system is clearly "Goldman Sachs" for health care - where the relentless drive for profit at the expense of people creates a spending bubble that nobody ever bothers to burst until it's too late.

In the end, Braly calls Wellpoint a "supporter" of health care reform. That's funny, I would think that a company committed to health care reform wouldn't illegally force their employees to lobby against it.

Consumer Watchdog in Santa Monica has asked California Atty. Gen. Jerry Brown to investigate its claim that UnitedHealth Group and WellPoint Inc. pushed workers to write their elected officials, attend town hall meetings and enlist family and friends to ensure an overhaul that matches their interests [...]

WellPoint, whose Anthem Blue Cross unit is the largest for-profit insurer in California and employs 8,000, took a more overtly negative tack.

"Regrettably, the congressional legislation, as currently passed by four of the five key committees in Congress, does not meet our definition of responsible and sustainable reform," Anthem said in a company e-mail last week. The proposals would hurt the company by "causing tens of millions of Americans to lose their private coverage and end up in a government-run plan."

The appeals amount to illegal coercion under California law, Consumer Watchdog research director Judy Dugan said. "While coercive communications with employees may be legal, if abhorrent, in most states, California's labor code appears to directly prohibit them," said Dugan, citing sections forbidding employers from "tending to control or direct" or "coercing or influencing" employees' political activities or affiliations.

Insurance companies like WellPoint support health care reform, all right - completely on their terms, and guaranteed to provide them a financial windfall. Anything else would be unacceptable, and they will take any tactic - no matter legal or illegal - to stop it.

As his somersaulting positions on abortion, immigration, Iran, Osama Bin Laden and myriad other issues showed, watching Mitt Romney's political gymnastics has long been painful. But with the passage of the Patient Protection and Affordable Care Act, Romney's contortionist act has reached a new low. Joining the ranks of Republicans demanding the repeal of an "unconstitutional" federal health care law virtually identical to the one he championed in Massachusetts, the 2012 White House hopeful finds himself "in a box" or the "nuance trap." But largely overlooked in Romney's latest effort to whitewash his Massachusetts health care success is the close partnership he forged with Ted Kennedy to achieve it.

As Karen Tumulty documented in November 2007, Governor Romney started on the road to his "defining moment" on health care almost from the moment he took office in 2002. His plan, which leveraged $385 million in federal Medicaid funding and $1.1 billion state was already spending to compensate hospitals for caring for the underinsured to subsidize the individual insurance mandate at its heart, quickly reduced the ranks of the uninsured from 13% to 3%. As MIT economics professor Jonathan Gruber, a Democrat who advised Romney then and candidates Hillary Clinton, Barack Obama and John Edwards later, put it:

"He was incredibly impressive, with his intellect, his ability. If there is anything that qualifies him to be President of the United States, it is his leadership on this issue."

And as Tumulty recounted, Gruber wasn't alone. Ted Kennedy, Romney's former foe and the liberal lion of the Senate, was impressed as well. As it turns out, Teddy and Mitt worked together to lobby the Bush administration to secure the needed funding - and flexibility - needed to make it all possible:

Someone else took notice as well. No one has fought longer and harder for universal health coverage than Senator Edward Kennedy; he introduced a national health-insurance bill back in 1970. But he and the Governor were not exactly allies. Romney had challenged Kennedy for his Senate seat in 1994 in a nasty race. Reading the first outlines of Romney's plan in the Boston Globe, Kennedy decided the Republican Governor was serious about the issue, and he told his staff to reach out to Romney's advisers. Before long, Romney was in Kennedy's office in Washington, taking his PowerPoint slides with him. "Had Senator Kennedy said, 'This is a lousy idea, and I don't want anything to do with it,' I would have been back at square one," he admits.

Kennedy was sold, and both men turned to the question of how to pay for the plan. Part of the money could be shifted from the existing $1.1 billion fund through which hospitals had been compensated for the care they were providing the uninsured. But to fund universal coverage, they desperately needed to persuade HHS Secretary Tommy Thompson to allow Massachusetts to keep the $385 million in Medicaid funds that Washington was threatening to take away. The money would also give them leverage back home with health-care providers and businesses, two powerful constituencies and potential opponents of reform.

Their talks with Thompson went right down to the wire. The HHS Secretary signed the deal in a marathon negotiation with Romney and Kennedy that ended on Jan. 26, 2005, his last day on the job, while his going-away party was getting under way. The agreement stipulated that the commonwealth could keep the money but only if it passed a universal-coverage law.

But even with the funding secured, back in Boston passage of the new health care bill in early 2006 was no sure thing. Again, as Time's Tumulty detailed, Mitt Romney turned to his former foe turned ally Ted Kennedy to seal the deal:

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