KHN Morning Briefing

Summaries of health policy coverage from major news organizations.

Supreme Court Names Lawyers To Participate In Health Law Case

The high court named two lawyers to argue specific elements of the health law case — both of which are related to the individual mandate. Meanwhile, Republicans step up questions on Justice Elena Kagan's level of involvement regarding the health law in her prior position when she was the Obama administration's solicitor general. In addition, Democrats continue to push on Justice Clarence Thomas' possible conflicts of interest.

Reuters: Top Court Names Lawyers To Argue Health Care Case
The court brought in two veteran Washington, D.C., attorneys, H. Bartow Farr III and Robert Long, to argue positions that none of the other parties were advocating. Long, a partner at Covington & Burling, will argue that lawsuits challenging the insurance purchase requirement, a provision known as the individual mandate, are barred because the penalty has yet to be imposed. ... Farr, a partner at Farr & Taranto, will argue that if government cannot require people to buy health insurance, all other provisions of the law can go into effect (Vicini, 11/18).

Modern Healthcare: High Court Invites Two Washington Lawyers To Take Part In Reform Law Arguments
The U.S. Supreme Court invited two esteemed Washington lawyers to join the marathon oral arguments scheduled for its review of the Patient Protection and Affordable Care Act. In an order issued Nov. 18, H. Bartow Farr was asked to argue as a friend of the court that the requirement that individual's buy health insurance can be severed from the rest of the law, meaning its many other provisions could survive if the mandate is ruled unconstitutional. ... Robert Long, meanwhile, was asked to argue in support of the position that it's too soon to challenge the mandate because it's technically a tax, and the Anti-Injunction Act bars lawsuits over taxes that have yet to be imposed (Blesch, 11/19).

Roll Call: Republicans Question DOJ Over Kagan Role In Health Care
Senate GOP leaders called on the Justice Department to divulge the level of involvement Supreme Court Justice Elena Kagan had in consulting on health care legislation that will be considered before the high court next year. Kagan served as President Barack Obama's solicitor general prior to her appointment to the Supreme Court and conservatives have openly questioned her ability to consider the health care law as a sitting judge. In a letter to Attorney General Eric Holder, leaders including Minority Leader Mitch McConnell (Ky.) and Minority Whip Jon Kyl (Ariz.) wrote that "when a former member of the administration is in a position to rule on litigation in which she apparently had some involvement and which concerns legislation she herself supports, public confidence in the administration of justice is undermined" (Brady, 11/18).

Politico: Senate GOP Wants Answers On Kagan And ACA
Kagan was solicitor general in the Obama administration when the health care law passed. Judicial Watch, under Freedom of Information rules, recently obtained emails Kagan sent amid the law's passage. On March 21, 2010, she wrote, "I hear they have the votes Larry!! Simply amazing ..." Federal law requires judges to recuse themselves when they have served as counsel or a witness to the case and when his or her impartiality might be questioned. But a justice can use his or her own discretion on recusal (Haberkorn, 11/18).

The Hill:  Dems Ramp Up Attacks On Justice Thomas Ahead Of Health Law Ruling
House Democrats wrote to the U.S. Judicial Conference on Friday urging the watchdog agency to request that U.S. Attorney General Eric Holder investigate Supreme Court Justice Clarence Thomas. Thomas is under scrutiny for failing to report at least $1.6 million that his wife earned from conservative interests between 1997 and 2007. The letter, spearheaded by House Rules ranking member Louise Slaughter (D-N.Y.) and signed by 51 House Democrats, comes after newly released documents show Thomas properly reported his wife's income for at least seven years before 1997 (Pecquet, 11/18).

Kansas City Star: American Benefits Council President Sees Options For Health Care Reform
The national president of the American Benefits Council is putting his bets on the U.S. Supreme Court deciding that the Patient Protection and Affordable Care Act's individual insurance mandate is constitutional. In remarks this week to the Kansas City Compensation and Benefits Association, the official, James A. Klein, said he expected the court to show "some deference to Congress having passed the law" and not rule the mandate unconstitutional. The justices, he conjectured, may not want to upset the balance of power among the administrative, legislative and judicial branches in an election year, and they may not want to rule "prematurely" by responding to requests for injunctive relief (Stafford, 11/18).

Meanwhile, from KHN, an infographic —

Kaiser Health News: Legal Questions And Answers That Will Decide The Health Law's Fate (Infographic)
The challenge to the Affordable Care Act that the U.S. Supreme Court will consider this March involves a series of complex and inter-related legal questions. How the court views each one — including the constitutionality of the law's individual mandate and Medicaid expansion, as well as the application of the Anti-Injunction Act and the question of severability — will trigger a cascade of related decisions. What the court finds will determine whether the measure is implemented in whole, in part or at all (11/18). 

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