Affordable Care Act: An "Unprecedented" Case

January 25, 2012 —

Adjunct Professor Madhu Chugh, Georgetown Law representatives Randy Barnett, Paul Clement and WilmervHale’s Randy Moss engaged in discussion.

In March, the Supreme Court will hear more than five hours of oral argument on the legal challenges to the Patient Protection and Affordable Care Act. It’s a far cry from 2010, when the first arguments against the new health care law were being called “frivolous.”

“A lot of smart people … just couldn’t see the problem with this legislation,” said Professor Randy Barnett, who has been “at the leading edge of intellectual thought” in critiquing the new law, according to Professor Larry Gostin. Barnett is now representing one of the challengers, the National Federation of Independent Business. “I heard widely that the challenges to this bill were frivolous. … Regardless of how this case comes out, I think that position has been refuted.”

At a January 23 discussion sponsored by the O’Neill Institute for National and Global Health Law, Barnett outlined the difficult issues the Court will confront, including whether Congress can use its commerce power to require individuals to contract with a private company for health care.

“It is literally unprecedented,” said Barnett — who also noted that the oral argument scheduled for March 26-28 is the longest granted by the Court in 47 years.

The panel, which was moderated by Adjunct Professor Madhu Chugh, included Adjunct Professor and former U.S. Solicitor General Paul Clement, who has argued on behalf of the states challenging the law in the lower courts and will argue the case in the Supreme Court, as well. Rounding out the discussion was Randy Moss of WilmerHale.

Gostin, the O’Neill Institute’s faculty director, noted the enormous implications the decision will have on politics and health care policy as well as law. (Gostin will be following both the Supreme Court case as well as the presidential election for The Journal of the American Medical Association; an overview of the Affordable Care Act litigation appears in the January 25 issue of JAMA.) “The political stakes loom large,” he said.

-- Ann Parks