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Just before the Supreme Court began oral arguments on the health care reform law last month, I thought back to the last time I covered an oral argument before the high court.
It was in February 1990. The issue before the Supreme Court was whether the Pension Benefit Guaranty Corp. had the right to return to a company a pension plan the agency previously had taken over.
The case involved several massively underfunded pension plans sponsored by LTV Corp., a financially distressed steel producer. In 1987, the PBGC took over three LTV plans and their $2 billion in unfunded liabilities after the company said it no longer could afford to make contributions.
A few months later, LTV and the United Steelworkers union reached an agreement on a new low-cost pension program that would guarantee to pay most of the difference between benefits promised by LTV and those guaranteed by the PBGC.
Soon thereafter, the PBGC returned the terminated plans to LTV, contending that the new LTV plans were an illegal continuation of the old plans with benefits now largely paid by the PBGC. In returning the plans to LTV, the PBGC said it would not pay benefits to plan participants. LTV immediately filed suit to stop the PBGC's action.
A multiyear court battle followed, with the case ultimately going to the Supreme Court. Twenty-two years have passed, but I still can vividly recall what then-Chief Justice William Rehnquist said as LTV's attorney began his arguments.
Justice Rehnquist cut off the attorney and suggested that LTV's action's were an attempt to “fob-off” the pension plan liabilities onto the PBGC. In a few words, Justice Rehnquist got to the heart of the issue and made a comment that indicated how he would later rule. A few months later, the Supreme Court, in an 8-1 ruling, sided with the PBGC.
But in the roughly six hours of oral arguments on the health care reform law, I didn't hear any one-liners that definitively indicated how any justice will rule on two key issues before the court: Is the law's individual mandate unconstitutional? And, if it is, is the mandate so intertwined with the broader law that the entire law would fall if the court rules the mandate is unconstitutional?
The justices asked many tough questions, but I don't have any more of a clue to what their ruling on those issues will be than I did before the arguments.
The question I kept asking myself was why the law was before the Supreme Court. How was it the law was drafted in such a way that critical provisions were vulnerable to legal attack?
The answer to that question is clear and it speaks to the breakdown of our political system. The legislation did not go through what was once the traditional extended review process. For the most part, committee consideration was hasty, and there wasn't even a joint conference committee to resolve differences between House- and Senate-passed bills and pass a carefully reviewed and crafted final bill.
Both parties share in the blame. Unless the two parties can once again try to work together, more of our laws—the few that are passed—will end up being challenged in court.