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History Up Close at U.S. Supreme Court Health Care Arguments

Mike Klein

Monday morning millions will pay attention via media reports but only a few dozen will be inside when the U.S. Supreme Court begins three days of hearings that will decide the constitutionality of President Barack Obama’s federal health care reform law.  Georgia Attorney General Sam Olens will be among those few who have a seat in the Court where history will begin to unfold.

“We won’t know the opinion until the end of June,” Attorney General Olens said this week when he discussed the case before Georgia Public Policy Foundation members and guests.  The lawsuit that reached the U.S. Supreme Court is just one of several filed nationally that all had the same goal: Throw out the Patient Protection and Affordable Care Act and start over.

Georgia is among 26 plaintiff states that are challenging the law before the Supreme Court.  U.S. District Court Judge Roger Vinson ruled the individual mandate unconstitutional in his January 2011 decision.  Vinson further ruled that the mandate is the essential component of the entire law and, therefore, he declared the entire law unconstitutional.

The federal government appealed to the 11th Circuit Court of Appeals in Atlanta.  Last August the appellate court upheld Judge Vinson’s individual mandate decision by a 2-1 margin but the three-judge panel also ruled that the mandate could be severed from the entire Act, so the remainder of the law could stand.  “We didn’t like that part of the ruling,” Olens said.

That is a very condensed version of how this case got to the Supreme Court.  As the Attorney General outlined, six hours of arguments over three days will be conducted as follows:  Monday the Court will consider whether legal challenges are premature or whether challenges must wait until after the law takes full effect in January 2014.  Individual mandates will be argued Tuesday and Medicaid expansion Wednesday.

Georgia Attorney General Sam Olens

Olens explained the question-at-hand for Monday.  “The issue is simply that you cannot file a lawsuit on the imposition of a tax before the tax is collected,” the Attorney General said.  “Since the tax, or penalty, is not collected, until January 2014 the theory goes this case has been prematurely brought and you would have to re-file it after January 2014.”

The individual mandate section to be argued Tuesday has generated the most headlines since the Obama administration began to pursue health care reform legislation.  It would require that every adult American – “with minimal exceptions,” Olens said — must obtain health insurance or pay a penalty to the federal government starting in 2014.

This raises the question: can the federal government force citizens to purchase any product, and if they choose to not purchase the product, can the government then impose a fine?  The U.S. District Court in Florida and the Appellate Court in Atlanta both said no.  Other courts have issued different rulings, causing confusion and requiring a Supreme Court final decision.

Medicaid expansion under this law – without federal funds to support the expansion – is the Wednesday discussion.  Olens said Georgia’s Medicaid-eligible population could swell by 650,000 to 750,000.  The reason is the bill establishes Medicaid eligibility at 133 percent of the federal poverty level starting in 2014.  Medicaid is a shared federal – state partnership but states increasingly are being forced to absorb expanded costs even before this new law takes effect.

“We already know that (fewer) doctors will accept Medicaid,” Olens said.  “What happens when we have a 35 percent increase in the number of Georgians that are then on Medicaid?  It is an additional $2.5 billion cost (to Georgia) over the decade.”

Attorney General Olens also said the federal health care law will require large employers that include state governments to offer a minimum level of benefits, as decided by the federal government.  “They are telling us what coverage we need to provide to state employees,” Olens said.  “That ought to be your decision, not the federal government’s decision.”

(Mike Klein is Editor at the Georgia Public Policy Foundation

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March 23, 2012 Posted by | Uncategorized | , , , , , , | Leave a comment

Deal, Olens Welcome Supreme Court Health Care Review

Mike Klein

Governor Nathan Deal and Attorney General Sam Olens issued strong statements on Monday in support of overturning federal health care reform, just a few hours after the U.S. Supreme Court said it will review  legislation that became law 20 months ago.

Olens said the Supreme Court hearing scheduled for early next year is “a crucial step in our long fight to reign in the federal government’s unconstitutional over-reach into the healthcare marketplace.”  Deal’s statement recognized “the fight against the crippling mandates of Obamacare,” which has become a popular term for federal health care reform.

Georgia is among 26 states that sued President Barack Obama’s administration to overturn the Patient Protection and Affordable Care Act, which became law in March 2010.  The central and dominant point of contention is whether a federal government individual mandate could require that each American purchase health insurance or face financial penalties starting in 2014.

Governor Deal said, “Obamacare would vastly expand our state’s Medicaid enrollment, creating a huge new tax burden on Georgia taxpayers. Frankly, our state can’t afford these new unfunded mandates, and what we’re seeing is that the majority of states feel the same way. The outcome of this case is hugely important to the future of Georgia, and we have high hopes for a favorable decision from the Supreme Court next year.”

Governor Nathan Deal

During his State of the State address in January Deal said the federal health care law would add 650,000 Georgians to state Medicaid rolls, costing $2.5 billion in new state expense over ten years.  “It’s appropriate and expected that the court would rule on an issue so central to Americans’ individual liberties. As governor, I’m especially happy to see the court look into whether the federal government can force state governments to take on huge new spending programs.”

Olens outlined the scope of the Supreme Court review: “The Court has agreed to review whether the individual mandate exceeds the limited powers of Congress; whether the individual mandate, if unconstitutional, can be struck down on its own or whether the whole law must fall; whether the federally mandated expansion of Medicaid exceeds Congress’s powers under the Spending Clause of the Constitution; and whether the Anti-Injunction Act affects the Court’s jurisdiction to hear the challenge to the individual mandate.”

The timetable established by the Court – arguments in February or March and a decision likely in June – means the justices will deliver their opinion before Republican and Democratic presidential nominating conventions, and months before November 2012 national elections that could become a referendum on the expansion of federal government ala the health care model.

Petitions and briefs are posted on the U.S. Supreme Court website.

Attorney General Sam Olens

Four federal appellate courts have heard Patient Protection and Affordable Care Act cases.  The Supreme Court accepted the case that came through Atlanta’s 11th Circuit Court of Appeals where justices ruled the individual mandate is unconstitutional.

Opponents include the National Federation of Independent Business, a small business group, and states that argue the law’s expansion of Medicaid eligibility will become a budget buster.  Medicaid expenses are the single fastest growing segment of the Georgia state budget.

Supporters counter argue that reform — sometimes known as Obamacare — will make health care more accessible to millions of Americans.  Some supporters consider the measure to be as historic as the creation of Social Security, Medicare and the Civil Rights Act.

Federal appellate courts in Cincinnati and Washington upheld the law.  One in Richmond, Virginia declined to rule because the individual mandate provision is not in force until 2014.

(Mike Klein is Editor at the Georgia Public Policy Foundation)

November 14, 2011 Posted by | Uncategorized | , , , , , | Leave a comment

Deal, Olens Praise Rejection of ObamaCare Individual Mandate

Mike Klein

Georgia’s governor and attorney general said Friday’s decision by the federal appeals court in Atlanta that strikes down the federal health care reform individual mandate is “a huge step toward victory” but ultimately, ObamaCare will be decided by the U.S. Supreme Court.

Governor Nathan Deal and Attorney General Sam Olens issued a statement about two hours after the 11th Circuit Court of Appeals in Atlanta released its 2-to-1 opinion:

“We applaud today’s ruling from the United States Court of Appeals for the 11th Circuit striking down the individual mandate as ‘a wholly novel and potentially unbounded assertion of congressional authority.’ Today’s ruling recognizes the core principles of our federalist system and reminds an over-reaching federal government that the Constitution applies to it, too.

“We do not, however, agree with all findings in the decision. Unlike the 11th Circuit, we believe that the Obama administration should be taken at its word that the individual mandate is crucial to the whole bill, and that the whole bill should be struck down.

Governor Nathan Deal

Attorney General Sam Olens

“But this much is certain: Federal health care reform is on life support, and this case will be decided by the Supreme Court of the United States. Today is a huge step toward victory, but it is also a day that emphasizes the importance of the work ahead.”

Friday’s decision came in a case filed by Florida and joined by 25 states including Georgia. In January, federal judge Roger Vinson ruled all of federal health reform was unconstitutional.  The federal government appealed.  Friday’s decision rejected only the individual mandate.

Chief Judge Joel Dubina and Circuit Judge Frank Hull found “the individual mandate contained in the Act exceeds Congress’s enumerated commerce power.”

Their majority opinion said, “What Congress cannot do under the Commerce Clause is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die,” the opinion said.

Judge Stanley Marcus disagreed in dissent.  He wrote that the majority opinion ignored the “undeniable fact that Congress’ commerce power has grown exponentially over the past two centuries, and is now generally accepted as having afforded Congress the authority to create rules regulating large areas of our national economy.”

Obama administration options include asking the complete 11th Circuit Court to review the opinion, or it could appeal directly to the U.S. Supreme Court.

Three federal appeals court cases are working their way toward a Supreme Court resolution. The court in Cincinnati upheld ObamaCare and court in Richmond has yet to issue its opinion.  A decision by the U.S. Supreme Court would come during the 2012 presidential election year.

(Mike Klein is Editor at the Georgia Public Policy Foundation)

August 12, 2011 Posted by | Uncategorized | , , , , , | Leave a comment

Open Meetings, Records Act Rewrite Pushed by Attorney General Olens

Mike Klein

The House Judiciary Committee is scheduled to meet on August 30 to discuss a rewrite of the state Open Meetings and Records Act that has become a priority for Attorney General Sam Olens.  House Bill 397 was filed late in this past spring’s session and a vote is possible next year.  “My goal is to pass the bill,” Olens said.  “I’m not putting myself out here for failure.”

Making public records easier to obtain, opening more meetings to citizen eyes and cracking down harder on those who prevent that from happening has become a goal for the first-term Attorney General.  He made that clear during a recent presentation to the Atlanta Press Club.

“While the press continues to spend much energy on ORA – the Open Records Act – which I totally understand and appreciate – I would suggest to you that most abuses occur with regard to the Open Meetings Act,” Olens told about 115 Press Club guests during a panel discussion.

“When you go to a public meeting and they cover 20 topics in 15 minutes please don’t think that the meeting’s agenda was handled at the meeting.  So the most meaningful changes in this rewrite relate to the Meetings Act rather than Open Records.”

Attorney General Sam Olens

Olens noted one particularly egregious recent Open Records Act request case.  A citizen who requested information from the Cherokee County School District was told it would take several thousand hours to produce the work, only after he submitted a check for more than $324,000.

“My office called the lawyer for the Cherokee County School board and said, you really don’t want our letter do you?  The next week the individual got the documents he wanted,” Olens said.

House Bill 397 would address how much governments can charge in advance for records requests, set guidelines for  providing them electronically, and it would mandate which records public agencies must keep and for how long.”

The legislation would also introduce the possibility of civil or criminal penalties for Open Meetings or Records Act offenders, and steeply increased fines.

“When you look at other states that are considered (to have) model Sunshine Laws, they all have strong legislative intent that you’re supposed to give the public government information.  We don’t have that in our law at all, and that’s in (the legislation),” Olens said.  “We are trying as best we can to strengthen the law and get it passed.”

(Mike Klein is Editor at the Georgia Public Policy Foundation)

August 10, 2011 Posted by | Uncategorized | , , , , , , | Leave a comment

Georgia Asks Supreme Court to Reconsider Charter Schools Decision

Mike Klein

Georgia Attorney General Sam Olens has asked the state Supreme Court to reconsider its recent decision that declared the state charter schools commission is unconstitutional.

“Today we filed a motion for reconsideration in an effort to protect the rights of Georgia students to have a say in their education and be placed in a school that meets their needs,” Olens said. “I hope the Court will accept the arguments presented in our brief and reconsider their decision.”  The two-part filing included a motion asking the Court to stay its decision announced May 16.

The Court’s 4-3 opinion immediately impacts 16 brick-and-mortar and online learning charter schools that expected to enroll at least 15,000 students when classes resume in August.  State legislators have begun work on options to provide a short-term fix this fall.  A Senate education sub-committee will be in session on this question next week.

All Georgia charter schools are public schools, and most of the state’s 60,000 charter students attend schools that received charters from local school districts.  However, 16 other schools received state Charter Schools Commission authorization to open after they were turned down by local districts.  This was made possible by a 2008 law that created the commission.

Seven school districts filed suit in 2009. They argued the state charter schools commission was unconstitutional because it bypassed local control of education. The plaintiffs also argued state charter commission schools did not fit the definition of “special schools” that the state is permitted to establish for deaf and blind students, and for other purposes like adult education.

The plaintiff districts did not argue money before the trial court, where they lost, or before the Supreme Court, where they prevailed one week ago.  Tens of millions of federal, state and local dollars are directed to state charter commission schools.   Consequently, local school districts lose those dollars when students exercise school choice rights and choose charter schools.

Georgia Attorney General Sam Olens

Four Supreme Court justices in the majority ruled state charter commission schools are not special schools, according to the definition of special schools in the 1983 amended constitution. The Court also affirmed the local control position advocated by the plaintiff school districts.

The Attorney General’s office motion articulated this distinction:  “Special now evidently means a ‘special student,’ while our Constitution refers to ‘special schools.’  ‘Special’ apparently no longer means a school that offers an experimental and different approach to education than that found in a local school system.”

The motion to reconsider filed by Attorney General Olens also argued Georgia public education has never been exclusively about local control; rather, it is a shared responsibility.  The Georgia state public education budget is some $7 billion per year, about 40% of the entire state budget.

Charter schools enroll about 4% of the state’s 1.65 million public school students; the number who would attend state commission schools next year is 1% of the entire student population.

State lawmakers are considering several ideas that would enable Georgia to regain the position it had begun to earn as a national leader in the school choice and charter schools movements.

Short-term options include placing the 16 affected schools directly under the state Board of Education as “special schools” that receive state funds but no local dollars.  Another potential idea would enable them to open this fall as private schools.  Funding models would change.

Long-term, the Legislature is expected to approve a proposed constitutional amendment that would ask voters to give the state the authority to establish public schools.  The amendment would appear on the November 2012 general election ballot.  But that election is 18 months away, so other protections are needed for the 2011 and 2012 calendar school years.

(Mike Klein is Editor at the Georgia Public Policy Foundation)

May 27, 2011 Posted by | Uncategorized | , , , , , | Leave a comment