What’s Happening with Seniors Benefits

by Art Kelly

1.  The U.S. Supreme Court accepted the appeals on Obamacare and extended the scope of the issues that will be considered to a greater extent than many observers expected.

A previous issue of this newsletter predicted the Court would announce on November 14 that it would take the case.  A decision will likely come down in June, which would have a big impact on both the presidential and congressional campaigns.

The Hill says oral arguments before the Court could be held as early as February or March.

"The justices set aside five and half hours for oral arguments, more than any other case in recent memory. And they agreed to hear every part of the challenge, including some elements that experts did not expect to make the cut," Sam Baker wrote.

The biggest surprise was the court's decision to consider the arguments of the 26 states about the expansion of federal control of state Medicaid operations.  No lower court agreed that this expansion of federal authority amounted to "commandeering" of the states.

A law professor who believes Obamacare is constitutional said a ruling on the side of the states on Medicaid would have significant implications.

"That would be a very revolutionary finding, because it would call into question all federal spending programs," Tim Jost of Washington and Lee University told The Hill.

The Supreme Court will also consider the severability of the law. If one part of Obamacare is found to be unconstitutional, how much of the rest of the law is affected?

2. When the Court announced it will hear the appeals on Obamacare, Justice Elena Kagan did not recuse herself. 

Since she had been the solicitor general in the Department of Justice, which planned the defense of the health care law, conservative groups had urged her not to participate in the Court's deliberations on this issue.

28 U.S.C. 455(b)(3) requires judges and justices to recuse themselves if their "impartiality might reasonably be questioned."  This law specifically requires recusal when judges or justices have "served in governmental employment and, in such capacity, participated as counsel, advisor, or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy."

It is not clear how large of a role Kagan played at Justice in formulating the prospective legal defense of Obamacare, but it has been documented that she expressed a very favorable opinion about this legislation in an e-mail to Laurence Tribe.

According to The Hill, Kagan is not expected to recuse herself later in the proceedings.

3.  The architect of Romneycare has emphatically stated that "it's the same bill" as Obamacare.

In an interview with Capital New York, Jonathan Gruber, a professor at the Massachusetts Institute of Technology, helped draft Romneycare and also consulted with the Obama Administration on its legislation.

When asked about Mitt Romney's claim that the federal legislation is more extensive than his state legislation, Gruber replied, "He's just lying."

The Hill examined Romneycare and Obamacare and concluded, "There are indeed strong similarities between the two laws."

The New York Times produced a side-by-side chart of the two laws and found them almost identical, with Romneycare slightly more liberal than Obamacare.

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Previous issues of both newsletters.