Exclusive Interview with Susan Low Bloch, Professor of Law, Georgetown University.

In an exclusive interview on The Hutchinson Report Newsmaker Hour with host Earl Ofari Hutchinson on KTYM 1460 AM Los Angeles on March 30, Susan Low Bloch, Professor of Law, Georgetown University.

Transcription by Annette Lockett, McAl Typing Service  FAX 323-293-0404 * E-Mail ptnana@pacbell.net * http://McALTypingService.com

EOH:   Why did the Supreme Court take this case right now?

SLB:     They didn’t have a lot of choices.  The big choice was the decision by the Obama administration to ask the court to hear it now.  The law was being challenged in the lower courts and the different lower courts were going different ways.  The Obama administration could have chosen to play it out longer in the lower courts, but instead decided to ask the court to hear it now.  When the government asks, the court generally agrees.

EOH:   It seems that we have federal versus state arguments.

SLB:     The argument by the challengers is that this law goes too far.  In the courts of appeals, only 1 court has found that the act in fact did go too far.  The others have said it is perfectly constitutional.  The big question is what has come to be called “the individual mandate”.  There are parts of the law everyone likes; that insurance companies can’t deny coverage for preexisting conditions, and control of the costs companies can charge.  The problem is, in order for insurance companies to afford to have those conditions, everyone has to be part of the system.  That’s the individual mandate and that’s what’s being challenged.

EOH:   Was I wrong in assuming that the argument would be the violation of individual rights?

SLB:     You are right.  When you talk about this individual mandate, you bring up bells and whistles; "Oh my God you can’t force me to do this kind of stuff.”  That’s not the problem.  Everyone agrees it’s not really the individual rights thing.  The issue is whether Congress, in regulating the health care market, makes sure we don’t have these “free riders”.  What makes it complicated is that health care is totally unique: if we get sick and don’t have health care, the doctors in the hospital have to take care of us whether or not we can pay for it.  It’s saying that you are going to get health care regardless, and you can buy the insurance or you chip in for later.  You don’t have to buy this insurance, you can pay the tax and the money will be there when you get sick.

EOH:   What is your sense at this point as to which way the court is likely to go?

SLB:     It’s hard to read the tea leaves, but if they strike the mandate down, I think they are likely to send it back to Congress and say “you can have this provision, but you fix this any way you want,” which, I guess, is better than throwing out the whole statute.  The other possibility is that they can’t have the mandate and therefore without the mandate, you don’t want the covering pre-existing conditions, and insurance rates.  We’ll just throw those two out.  That I think is the most moderate.  I don’t think it will strike the mandate down and leave everything else without letting Congress try to fix it.

EOH:   Will there be an appetite for Congress to take this up again?

SLB:     No.  Congress will hate the idea.  They can’t get together on minor issues.  If the court strikes this down, it will be monumental.  It will be similar to in the New Deal era when the conservatives struck down Franklin D. Roosevelt’s progressive legislation.  It will be quite monumental because most of us look back on that and think the court was wrong then, and this will be very similar.  It would be very hard for Congress to fix it.

EOH:   What are your thoughts on Medicaid Expansion?

SLB:     Medicaid Expansion is separate but related.  The courts could strike the mandate down but keep the Medicaid, or both.  Most people think the Medicaid part will probably be upheld.  If the courts strike that down, it too will have a very big impact on poor people’s access to health care.

EOH:   If the court strikes this down as unconstitutional, how deep into business and politics could this reach?

SLB:     I think it will be consequential.  It means that people within the last few months having been able to get health insurance not withstanding preconditions will lose that health care.  Young people who have been allowed to stay on their parents insurance until 26 will also lose.  People will suddenly lose rights that they have had for the past few months and have gotten to like.  If Medicaid is struck down, that will affect a lot of poor people.

EOH:   It appears that whichever way it goes, it will energize one side or the other.

SLB:     That is absolutely right.  Whichever side loses in the Supreme Court, their base will be energized.  If they win, their base will be somewhat energized as well.  I think that because it is so difficult to predict the political consequences, the Supreme Court will not try to figure that out.  They will be doing it on the merits of constitutional law.  This is an important constitutional question and I am sure that they are going to decide it on the constitution and not politics, because it would be inappropriate to do so.

EOH:   What were the compelling arguments you heard that came out of the deliberations?

SLB:     The conservative justices, Scalia and Alito, Thomas didn’t ask any questions, are troubled by this mandate, can they force us to {do other things}.  On the moderate/more liberal side you have Kagan, Sodomyer, Ginsburg and Breyer.  They are pretty solidly behind the law.  Their view is that this is interstate commerce.  The health care industry is usually important and influential in our nation and congress can regulate it.  Before you get a free ride, you will have to chip in at least a little bit.  Either buy insurance or pay the $600 penalty.  In the middle are the two people to watch, Kennedy and Chief Justice Roberts.  They are concerned about being a court that throws out such an important law and are afraid of looking like the conservative court of the 1930’s.  If they can persuade themselves this law is really unconstitutional, they will throw it out, but I think they will be troubled by picking on something that generally they can defer to Congress.

EOH:   What are your thoughts on Justice Ginsburg’s declaration about this law?

SLB:   Definitely what she meant was keeping this law intact.  She is clearly a strong supporter and understands that insurance works when everyone buys into it and contributes.  She is concerned about the states saying they are not going to go into the Medicaid thing because the Federal offer is so attractive.  It’s an offer you can’t refuse and the court should defer to Congress