Lawyers convene in Pittsburgh to discuss landmark health care cases

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The Obama administration is under heavy legal fire on multiple fronts: the House of Representatives recently voted to sue the president for executive overreach; the Affordable Care Act, popularly known as Obamacare, appears to be headed to the Supreme Court; and the Supreme Court dealt the president a setback in June when it unanimously decreed that some of the his recess appointments were unconstitutional.

Some of the lawyers involved in the fight were in Pittsburgh last week for the 25th anniversary of Jones Day, a law firm with offices in 19 different countries, and 16 offices in the U.S. alone, including one in Downtown Pittsburgh.

“One of the problems that you have is that you always have a president that wants to expand presidential power, and that president always has a constituency in Congress that supports him,” said Noel Francisco, the lawyer who won the case limiting the president’s recess appointment authority. Mr. Francisco, who is based in the Washington, D.C., office, spoke in a conference room on the 45th floor of the BNY Mellon building, where he was joined by three Jones Day colleagues.

“During the Bush administration, [executive power] was primarily exercised in the context of the war powers and the war on terrorism — an area where I would argue that the president’s authority is at its zenith,” he said. “In the Obama Administration, his unilateral exercises of power tend to be in the domestic sphere.”

Mr. Francisco and his colleagues in the room had a depth of experience, and resumes that sparkled such as those that might land on the desk of a president-elect assembling a Justice Department team — if, of course, that president-elect were a Republican.

Mr. Francisco clerked for Supreme Court Justice Antonin Scalia before serving in President George W. Bush’s Office of Legal Counsel from 2001 to 2005.

Michael Carvin, also of the D.C. office, climbed the ranks of the Justice Department during the Reagan years, and is among those leading the current Obamacare challenge.

Larry DiNardo, who is based in Chicago, successfully represented Pittsburgh-based U.S. Steel in a labor case before the Supreme Court.

Leon DeJulius, who clerked for the late Chief Justice William Rehnquist, was the only lawyer in the room not to have argued before the Supreme Court. He works in the Pittsburgh office.

“The principal virtue of being a Supreme Court advocate is being able to know how to count to five,” Mr. Carvin said.

The arithmetic has been more friendly to conservative arguments in recent years, particularly in the economic realm, ever since Justice Samuel Alito replaced Justice Sandra Day O’Connor in 2006.

The Obamacare challenge of which Mr. Carvin is a part is one of the nation’s most high-profile legal battles. Mr. Carvin and others are arguing that the subsidies provided to low-income insurance-buyers can be administered only to people who bought their health insurance through state-run exchanges, not the federally run exchange — 36 states, including Pennsylvania, declined to run their own exchanges, leaving the federal government to run the exchange instead.

Mr. Carvin lost 3-0 in the Fourth Circuit, but that ruling was issued the same day that a 2-1 ruling in a Washington, D,C., Appeals Court declared the subsidies illegal. The conflicting rulings will likely lead to a Supreme Court case, where a decision could strip 4.5 million people of the financial assistance they received through the Affordable Care Act.

The case is about “the rule of law,” not politics, Mr. Carvin said.

“It’s not a political, partisan debate. It’s an ideological debate,” Mr. DeJulius said. “It’s a matter of true academic and constitutional disagreement.”

Mr. Carvin argues that the Internal Revenue Service “hijacked” the law in deeming people eligible for subsidies if they bought insurance through the federal exchange.

The Fourth Circuit disagreed, ruling that “if a statute is susceptible to multiple interpretations, the court … defers to the agency’s interpretation so long as it is based on a permissible construction of the statute.”

“You need to interpret the law as written, not as how a bunch of people from Harvard and Yale would like the law to be written,” Mr. Carvin said.

The three justices on the Fourth Circuit Court attended law school at public universities in Maryland, Michigan and West Virginia.

The Jones Day lawyers said that the practice of constitutional law is far less political than the media makes it out to be.

“If you don’t have the right side of the textual argument, in today’s world, you label your opponents as being political,” Mr. DiNardo said.


Matt Nussbaum, mnussbaum@post-gazette.com, 412-263-1504 or on Twitter @MatthewNussbaum.

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