Two Supreme Court heavyweights headlined the National Chamber Litigation Center (NCLC)’s annual Supreme Court press briefing to discuss the top business cases on the Court’s docket, including the constitutional challenge to the health care law. Video archive of the briefing is available online.

Both panelists brought to the Chamber an inside view of the Supreme Court and in particular, the pending legal challenge to the health care law, the Patient Protection and Affordable Care Act.

Paul D. Clement, a Supreme Court lawyer for the law firm Bancroft PLLC, served as U.S. Solicitor General (the federal government’s "lawyer-in-chief") under President George W. Bush. Clement argued the health care case for the state challengers in the lower court and before the U.S. Supreme Court.

Neal K. Katyal, a Supreme Court lawyer for the law firm Hogan Lovells, served as Acting U.S. Solicitor General under President Barack Obama. Katyal defended the health care law in the lower courts, before leaving the federal government for private practice.

An Historic Term, An Historic Case

In introductory remarks, Robin Conrad, the executive vice president of NCLC, noted the “historic” nature of the Supreme Court term.

That’s a theme that both panelists echoed throughout the discussion. “Unprecedented – that’s a word Paul used a lot this term,” quipped Katyal, alluding to Clement’s argument that the individual mandate was historically unprecedented. “More people have paid attention to this case than any other case in recent history,” said Clement. “This is a case where everyone from ordinary citizens to reporters who are not used to covering the Court are getting an education on how the Court works.”

But how will the public view the Court’s conduct in this historic case over the long run? Clement stressed the integrity of the Court and its employees during this process, and noted the remarkable lack of leaks despite the historic nature of the case – a feat the press does not expect from the executive or legislative branches, Clement said. “In the long run,” Clement predicted, “people will have an appreciation that this really is a different branch of government.”

Court Not Politically Motivated

Katyal noted his surprise at the views of many that some of the Supreme Court justices might cast their votes in the case based on political considerations.

“I think that’s preposterous,” Katyal said. “I think if the individual mandate is declared unconstitutional by those Justices, this is going to be the hardest vote they case in their lifetimes, and I think they see it that way. This is not something they’re itching to do. I think if they do it, it’s because they’re persuaded by the arguments. But it’s not like they were trying to wait for this case to come along and try and tip an election or something like that.”

The Severability Issue: Where the ‘Rubber Meets the Road’ For Business

NCLC filed an amicus brief on behalf of the Chamber on the “severability issue” – that is, what happens to the rest of the health care law if the mandate is found unconstitutional. NCLC’s brief argued that without the mandate, the rest of the law no longer functions as intended, and should be struck down out of deference to Congress.

Clement was not surprised that the Chamber would file an amicus brief in the case. “Where the business community interest in this case really is acute is the severability issue,” he explained. The Court could take a range of options if it strikes down the mandate – options which include leaving the rest of the law intact, striking down some parts of the law along with the mandate but leaving others in place, or striking down the entire law.

“So you have this full range of possible outcomes, and the effect from perspective for the business community, the difference between those outcomes could be incredibly significant,” said Clement.  “At the end of the day, it’s not an accident that the Chamber filed in this case, and it’s not an accident that they focused on the severability issues, because that’s one that I think is where the rubber meets the road in terms of the practical impact for industry.”

Court Critical of Government’s Attempt at Regulation-by-Amicus-Brief

Both panelists explained that the Court addressed numerous other business law issues this term, which could have very significant impacts on the business community. Indeed, NCLC filed twelve amicus briefs in business cases heard by the Court this term.

Clement highlighted one recent Supreme Court case as an example. Christopher v. SmithKlineBeecham arose out of an overtime lawsuit brought under the Fair Labor Standards Act (FLSA).  The issue addressed by the Court was whether pharmaceutical representatives were “outside salesmen” under the law and therefore exempt from overtime. The Court ruled that the representatives were exempt.

“The potential liability for the [drug] industry in this case ran into the billions,” Clement explained. “But the case has broader significance. The FLSA has become one of the weapons of choice for plaintiffs attorneys because it creates a very favorable procedural dynamic for plaintiffs lawyers.”

Clement also noted that the Labor Department had been “quite supportive of the plaintiffs” in these cases. In its ruling, the Supreme Court rejected what a Wall Street Journal editorial dubbed “regulation-by-amicus brief” - the Court harshly criticized the Labor Department for announcing for the first time in 70 years a new interpretation of its “outside salesmen” regulations.  NCLC’s amicus brief argued that such regulation-by-amicus-brief circumvents the traditional rulemaking process, which provides the public with an opportunity to weigh in.

“If you’re a litigant trying to resist the government’s interpretation of your regulation, Christopher becomes one of only two cases you can cite,” said Clement. “Given how many regulations are out there, and given the ambiguity of those regulations… I think the decision is quite significant for the business community.”

Environment, Patent Cases Also On the Docket

Among other cases, Clement also discussed Sackett v. EPA, where the Court ruled last March that the EPA cannot “strong-arm” regulated parties into so-called “voluntary” compliance. The Court re-affirmed that regulated parties have the right to challenge the legal validity of EPA orders in court. To read more about that ruling, and NCLC’s amicus brief, you can read our earlier blog post on the case.

The panelists also talked about the Court’s newfound interest in patent law. “There is a growing confidence, and a growing awareness on the Court, that patents are the future of the American economy,” said Katyal. “That is where the whole focus of innovation is, and the Court needs to get more comfortable” with this area of the law and economy.”

In Cases Large and Small, Supreme Court Impacts the Economy

Given the range of cases on the Court’s docket that affect business, it’s no surprise that the U.S. Chamber’s public policy law firm, NCLC, files amicus briefs with the Court to explain how legal rules will impact the economy.

“For NCLC, this Term simply underscores once again the significant impact that the U.S. Supreme Court can have on this nation’s economy,” said Conrad. “Whether it’s a blockbuster constitutional case, a billion-dollar employment lawsuit, or a seemingly boring civil procedure case – each year this Court impacts the way businesses do business from day-to-day.”

“That’s why the National Chamber Litigation Center exists – to provide the Supreme Court and other courts with the business community’s perspective on what the law is, and what impact lawsuits and legal rules have on the economy.”

For more about the National Chamber Litigation Center, visit http://www.ChamberLitigation.com.