The nine Supreme Court justices aren’t expected to hand down a decision until late June, but Olens shared his thoughts and experience listening to the case’s oral arguments in Washington, D.C., with fellow Cobb County Republicans at their monthly breakfast meeting Saturday in Marietta.
Olens, an east Cobb resident who previously served as Cobb Commission chairman, is confident the Supreme Court will strike down the heart of the sweeping health care law: the issue of requiring individuals to buy health insurance or face financial penalties. He made it a central issue in his 2010 campaign.
Legal experts have pointed to Chief Justice John Roberts and Justice Anthony Kennedy as the decisive swing votes in the case.
However, Olens said he believes it will be come down to a 5-4 decision because the case deals with the U.S. Constitution’s Commerce Clause that gives Congress power to regulate commerce, which he said has traditionally led to close decisions.
“This case frankly isn’t about health care reform,” said Olens to the packed room at the county GOP headquarters on Roswell Street.
“This case is about the Constitution, Article 1, Section 8, and what you can do under the tax and spend clause and what you can do under the Commerce Clause.”
In late March, the Supreme Court made a rare exception by hearing oral arguments in the case for six hours over three days. U.S. Solicitor General Donald Verrilli Jr. represented the federal government and Paul Clement, a former solicitor general during the recent Bush administration, was the lead attorney on behalf of the states.
The Republican attorneys general, representing their respective states, joined the National Federation of Independent Business and four individual plaintiffs in the legal challenge to the Patient Protection and Affordable Care Act, referred also as Obamacare, passed by Congress and signed into law by Obama on March 23, 2010.
On that historic day at the White House, Obama said, “We have now just enshrined — as soon as I sign this bill — the core principle that everybody should have some basic security when it comes to their health care.”
The law’s controversial individual mandate requires nearly all Americans, excluding those too poor, to buy health insurance by 2014 or face penalties. Employers are also required to provide coverage to their workers or pay a fine. Supporters argue that the mandate ensures the affordability of health insurance premiums by bringing more people into the system, including those previously excluded because of pre-existing medical problems.
Critics contend that never before has the federal government exercised such power by requiring citizens to purchase a product or service, particularly from private companies. At least with automobile insurance, required by states, people can opt out by choosing not to drive, they’ve argued.
U.S. Rep. Phil Gingrey (R-Marietta) said in remarks at Saturday’s meeting that he is “extremely optimistic” the mandate will be struck down. He said he briefly attended the oral arguments, sitting in the back of the courtroom, after waiting in line with the public for 45 minutes.
Because of the health care law’s Medicaid expansion, Georgia will have to add 650,000 to 750,000 more people to the federal and state funded program, Olens said. He said that would add up to $2.5 billion over 10 years.
Under the law, the federal government will pay the entire cost of the expansion beginning in 2014, but will reduce its share to 90 percent by 2020, leaving the rest to be picked up by states, some of whom have complained about the increased financial burden.
“I think it’s clear the American public and elected officials were asleep for decades, watching us become more dependent on the federal government and not following the Constitution and the Tenth Amendment,” Olens said. “I think the Tea Party awakened Americans to that.”
Olens said he had to be in Atlanta on the second day of oral arguments, but had a close up view of the proceedings the other two days — thanks to being a member of the Supreme Court bar — as he was seated up front, directly behind the plaintiffs’ attorneys.
He was impressed with Clement’s well-known legal brilliance, which he used free of any notes before the justices. He thought it was telling that the liberal justices often answered their own questions. Georgia native Justice Clarence Thomas remained silent as usual, but was “very animated,” asking law clerks to retrieve books during arguments, Olens said.
Though Olens said he came away confident the nation’s highest court will rule the mandate unconstitutional, he said it’s ill-advised to rely on the justices’ questions as a clue to how they will vote. Kennedy asked tough questions of both sides, he noted, particularly on the issue of should the rest of the law stand if the mandate is ruled unconstitutional.
He acknowledged both political parties will likely use the case to rally support this election year, but worried the Obama administration will attempt to grasp increased federal power if re-elected. The attorney general said he currently has several costly lawsuits before the Supreme Court, challenging the administration in many environmental cases over coal.
“Quite frankly, I don’t have the resources to do what I’m doing now, let alone what I’d have to do then,” said Olens.
“There comes a point where — how many times can I hire a lawyer in D.C.? How many times can I use folks in addition to who I have in-house? It concerns me that in a second administration, there’s going to be no limit on how much he tries to plow through for his agenda.”