Sahil Kapur

Sahil Kapur is TPM's senior congressional reporter and Supreme Court correspondent. His articles have been published in the Huffington Post, The Guardian and The New Republic. Email him at sahil@talkingpointsmemo.com and follow him on Twitter at @sahilkapur.

Articles by Sahil

In separate articles that have garnered lots of attention recently, Supreme Court watchers Linda Greenhouse and Dahlia Lithwick make the case that the health care reform law's requirement that Americans purchase insurance easily passes constitutional muster.

In the New York Times, Greenhouse writes that the mandate comfortably falls within Congress's authority to regulate interstate commerce:

So I want to unpack the challengers’ Commerce Clause argument for what it is: just words.

Basically just one word, in fact: “unprecedented.” ...

The government argues that, to the contrary, the “uncompensated consumption of health care” by those who are willfully or helplessly uninsured is itself an enormous economic activity. The uninsured don’t exist apart from commerce. To the contrary, their medical care results in some $43 billion of uncovered health care costs annually and, through cost-shifting, adds $1,000 a year to the average cost of a family insurance policy. People who don’t want to buy broccoli or a new car can eat brussels sprouts or take the bus, but those without health insurance are in commerce whether they like it or not.

At Slate, Lithwick opines that the case is not even a close call on the merits:

So let’s start by setting forth two uncontroversial propositions.  The first proposition is that the health care law is constitutional. The second is that the court could strike it down anyway. ...

The law is a completely valid exercise of Congress’ Commerce Clause power, and all the conservative longing for the good old days of the pre-New Deal courts won’t put us back in those days as if by magic. Nor does it amount to much of an argument. ...

What matters is whether the five conservative justices are so intent in striking down Obama’s healthcare law that they would risk a chilly and divisive 5-4 dip back into the waters of Bush v. Gore and Citizens United.

Lithwick makes this prediction:

[The justices] will hear six hours of argument next week. They will pretend it is a fair fight with equally compelling arguments on each side. They will even reach out and debate the merits of the Medicaid expansion, although not a single court saw fit to question it. And then the justices will vote 6-3 or 7-2 to uphold the mandate, with the chief justice joining the majority so he can write a careful opinion that cabins the authority of the Congress to do anything more than regulate the health-insurance market. No mandatory gym memberships or forced broccoli consumption.


Freshman Rep. Allen West (R-FL), an outspoken conservative, penned an op-ed Friday in the Washington Times explaining why he thinks the health care reform law's individual mandate is unconstitutional.

The crux of his argument:

The 2012 Supreme Court must determine whether the Founders had any intention of mandating the behavior of private enterprises and individuals.

To me, the answer is obvious: absolutely not.

The op-ed echoes the commonly made conservative arguments against the law's requirement that Americans purchase insurance.

Rep. Michele Bachmann (R-MN) said Sunday that she will be sitting in the Supreme Court chamber to monitor the oral arguments on the health care reform law's constitutionality this coming week.

"It's been talked about all this last week," she said on ABC's This Week. "And I have a ticket. I will be in the Supreme Court chamber to hear these oral arguments live."

Bachmann added: "I was the chief author of the bill to repeal Obamacare, the first member of Congress to do so."

On Fox News Sunday, host Chris Wallace and Fox's managing editor Brit Hume agreed that the Supreme Court case is a "lose-lose" proposition for President Obama.

Wallace suggested -- and Hume fully agreed -- that a ruling to overturn the law would quash Obama's signature legislative accomplishment, while uphold it would energize Republicans ahead of the November elections as they campaign on repealing it through Congress.

Hume predicted that the law is "headed for extinction, whether sooner or later."

Kirsten Powers, who was also on the panel, disagreed, pointing out that overturning the law would lead to a backlash from those who like its more popular components and help Democrats in the elections.

Juan Williams posited on Fox News Sunday that Chief Justice John Roberts is aware that overturning the health care reform law's individual mandate would appear to be a politically motivated decision by five Republican-appointed justices.

Williams said a ruling to strike it down will appear "as if the court is simply siding with Republicans who have solidly and unifiedly" opposed the law. "And it will look as if they are simply playing out a political agenda. That's a big problem for Chief Justice Roberts and I think he's very sensitive to it."

On Fox News Sunday, Wall Street Journal editor Paul Gigot and Juan Williams offered a preview of the arguments in the Supreme Court health care case regarding the constitutionality of the individual mandate.

Williams argued that the requirement could easily be construed as falling within the parameters of high court precedent in the Wickard v. Filburn and Gonzalez v. Raich cases, which permitted the federal government to regulate actions that had an arguable impact on interstate commerce.

Gigot disagreed, pointing out that the Affordable Care Act represents the first time Congress has required Americans to purchase a product. "I do think the question is novel enough -- the compelling of commerce by the federal government," he said.

The justices will hear two hours of oral arguments on this issue Tuesday, the centerpiece of the law.

The latest "Mediscare" battle is rife with irony: Republicans are attacking a Medicare policy enacted by Democrats, even though they voted overwhelmingly to continue the policy last year and are supporting it again this year.

In a new TV ad, the House GOP's electoral arm NRCC targets Rep. Betty Sutton (D-OH) for backing President Obama health care reform law, declaring that it will "decimate Medicare" and "shred the social safety net and leave seniors vulnerable at risk." The NRCC is also launching robocalls in 13 Democratic-held districts slamming the members over the Medicare cuts in the reform law.

The Affordable Care Act reduces Medicare spending by some $500 billion over 10 years, mostly with reimbursement cuts to private insurers and health providers -- the reductions do not touch benefits. The aim was to reduce over-payments and strengthen the life of the safety-net program.

As it turns out, nearly every Republican in the House and Senate voted last year to sustain those cuts in the Paul Ryan budget. And they're set to do so again in the near future as his updated Path To Prosperity blueprint comes up for a vote. That's the context of these ads -- Republicans know Democrats are about to hit them hard for again pushing a plan that partially privatizes Medicare and ends the coverage guarantee, so they're making a pre-emptive strike.

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White House senior adviser David Plouffe on Sunday tore into Newt Gingrich's response to President Obama's remarks about Trayvon Martin.

"Those comments are reprehensible," Plouffe said on ABC's This Week. "Speaker Gingrich is clearly in the last throes of his political career. And you know, you can make a decision whether to go out with some shred of dignity or say these irresponsible, reckless things, and he's clearly chosen the latter path, and that's unfortunate for the country."

Appearing on ABC's This Week, White House senior adviser David Plouffe hedged when asked why President Obama hasn't come out for same sex marriage.

He instead hailed Obama's "groundbreaking progress for gays and lesbians in this country" -- including repealing Don't Ask, Don't Tell and ceasing to uphold the Defense Of Marriage Act -- which he said Republicans oppose.

House Budget Committee Chairman Paul Ryan said Mitt Romney is looking stronger as a candidate.

"I don't know if I'd say he has it wrapped up," he said. "He's clearly on his way. I think he's becoming the prohibitive frontrunner. And I think the sooner we coalesce around a nominee the better off we're going to be. Because, you know, the prize is November, not this summer."

Ryan left the door open to the being the GOP's vice presidential nominee.

"I would have to consider it [if asked]," he said, "but it's not something I'm even thinking about right now."