The Case that Could Change Health Care Forever
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By JOAN BISKUPIC,
Reuters
March 16, 2012

A little over a year ago, Florida Attorney General Pam Bondi was on a mission. Along with a group of like-minded officials from other states, she was determined to be the first to test President Barack Obama's healthcare reform law at the U.S. Supreme Court. And she wanted to find the right lawyer to do it. On February 16, 2011, two weeks after Bondi and the other state attorneys had scored a victory in a Florida trial court, she and two top assistants boarded a 6:25 a.m. flight from Tallahassee to Washington, D.C., for what attorneys call a "beauty contest."

The officials had set up a series of interviews with lawyers who wanted to be hired to take the case to the federal appeals-court level and beyond. Seeking someone with deep experience before the U.S. Supreme Court, Bondi and her colleagues had worked their contacts in Washington. The Florida team had a sense of urgency. Similar cases were moving fast. The state of Virginia, which had filed its own challenge, was trying to leap over the appeals-court stage. In addition, the National Federation of Independent Business, an influential trade association that had initially joined Florida's effort, had just hired its own lawyer and was ready to split off.

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Bondi had borrowed a conference room at a Washington law office where her brother was a partner, and her team heard pitches from three law firms winnowed down from a lengthy list. In the end, Paul Clement, a partner at the law firm King and Spalding LLP who had been a U.S. solicitor general under President George W. Bush, prevailed with arguments Bondi and her associates later described as "passionate," a manner they called "humble," and an eventual price tag that was especially attractive.

The choice of Clement on that cold day 13 months ago was one of several critical moments that defined the arc of the dispute the justices will hear over an extraordinary three days of arguments on March 26-28. Clement - 45 years old and often regarded as the leading Supreme Court advocate of his generation - agreed to charge a $250,000 flat rate. That figure, recorded in state documents, was a small fraction of what other lawyers had suggested they would bill, according to state officials involved in the case.

"I thought the advocacy could make a difference," Clement said in an interview last week, not long after completing his 57th argument before the Supreme Court. Of the overarching legal question in the healthcare care, a test of power between Washington and the states, he added, "I was really interested in that."

HIGH HURDLES
The case challenges the Affordable Care Act, at the core of which is a requirement that most people in the United States purchase health insurance by 2014. The Democratic-sponsored legislation opened up deep partisan divisions that continue to rend the country. Congressional Republicans argue that the law should be repealed, and all major Republican presidential candidates have opposed it.

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As a purely legal matter, however, any challenges to the Affordable Care Act faced high hurdles. Past Supreme Court cases give Congress broad authority to regulate interstate activities affecting commerce, such as insurance.

Defending the law, the Obama administration has argued that even opting not to buy health insurance affects commerce because uninsured people inevitably require healthcare and raise the cost for everyone. That argument has largely prevailed in the lower courts, and the administration has hewed to it.

In contrast, as the challengers developed their strategy, they have reworked and broadened their case. They pivoted to sweeping arguments they believed highlighted the administration's vulnerability: If government could force people to buy health insurance, what couldn't government force people to buy? What was the limit?

As a result, the litigation has had its own distinctive trajectory, rising from what once was regarded among many law professors as an "implausible" and "frivolous" case to one scheduled for a modern-record six hours of oral argument at the U.S. Supreme Court.

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