The invaluable Lyle Denniston reports at Scotusblog on today’s oral arguments in the U.S. Supreme Court in the case of Sorrell v. IMS Health, Inc. From “Argument recap: Yes, it’s about commercial free speech“:

No more than a few minutes into the Supreme Court’s argument Tuesday on the new information technology of data-mining, it became very clear that the Justices — perhaps more than a simple majority — see this first test case as one about corporate free speech.   That might not turn out to be true in every case of data-mining that comes along, but it would certainly seem so when a legislature blatantly sets out to curb the use of that technology to convey a commercial message, made up of truthful information.

So heavy was the defense of corporate expression in the opening stages of the argument in Sorrell, et al., v. IMS Health, et al. (10-779) that the lawyer for Vermont — the state involved — obviously had to continue her argument under siege.  Only later did it seem that some of the Justices wanted to provide some leeway for states to regulate data-mining that threatened to invade privacy, perhaps by crafting a less far-reaching final decision.

An assistant state attorney general, Bridget C. Asay of Montpelier, Vt., had barely begun when Chief Justice John G. Roberts, Jr., said the Vermont law that restricts the sale and use, for drug-marketing purposes, of data drawn from doctors’ prescription blanks had the purpose of barring drug companies’ sales representatives from seeing doctors to promote their company products.   Asay could only answer that she disagreed, as Justice after Justice — especially Antonin Scalia — asserted that the state was simply trying to intervene in the marketplace for drugs to promote a message that it liked and to block one that it did not like: that is, the sale of brand-name drugs.

Scotusblog’s case pages are at Sorrell v. IMS.

The National Association of Manufacturers joined the Washington Legal Foundation in filing an amicus brief in support of IMS. We cited the NAM’s Manufacturing Law Center summary of the argument in this preview post, and the WLF’s summary is also excellent: (continue reading…)

The U.S. Senate is expected this afternoon to take up H.R. 4, the Comprehensive 1099 Taxpayer Protection and Repayment of Exchange Subsidy Overpayments Act, which is a very long title for the bill to repeal the ridiculous filing requirement included in last year’s health care bill.

The National Association of Manufacturers last week sent Senators a “Key Vote” letter urging their support for an amendment by Sen. Mike Johanns (R-NE) that mirrors H.R. 4. From the NAM letter:

The Johanns amendment would repeal expanded reporting requirements under Section 9006 of the Patient Protection and Affordable Care Act (P.L. 111-148). Section 9006 requires businesses to file an Internal Revenue Service (IRS) form 1099 for all purchases of property and services in excess of $600. Previously, businesses were required to report only purchases of service and only from non-corporate entities. The new language essentially requires 1099 reporting for all transactions in excess of $600.

This reporting requirement is extremely onerous — especially for small manufacturers. The NAM supports efforts to ensure tax compliance, but not at the expense of manufacturers that are following the law.

The House passed H.R. 4 on March 3 by a vote of 314-112. The Senate has already cast this vote, more or less, when Senators voted 81-17 in early February to pass an amendment sponsored by Sen. Debbie Stabenow (D-MI) to S. 223, the FAA reauthorization bill.

So the clear majority is there for fixing this ill-conceived, anti-small-business provision in the health care law. Let’s pass this bill and send it to the President.

UPDATE (1:14 p.m.): The bill has passed, 87-12. We’ll post the roll call vote once it’s available. (UPDATE II: And here it is.)

The bill now goes to the White House for President Obama’s signature.

Leaders of the Start Over! Coalition, including the National Association of Manufacturers, wrote Sen. Kay Bailey Hutchison (R-TX) to express support for her amendment (S.Amdt.197) to the pending small business bill, S. 493, that would suspend further implementation of the Patient Protection and Affordable Care Act.

From the letter:

As you know, the constitutionality of the Affordable Care Act (ACA) is now the subject of considerable litigation before the Federal courts. To date, the U.S. District Court for the Eastern District of Virginia, ruling in Virginia v. Sebelius, and the U.S. District Court for the Northern District of Florida, ruling in Florida et al v. U.S. Department of Health and Human Services, have ruled the “individual mandate” in the ACA unconstitutional, and the latter went on to rule that the “individual mandate” is not severable from the rest of the ACA thus voiding the entire statute. Three other Federal district courts in the District of Columbia, Michigan and Virginia have upheld the constitutionality of the ACA. It is a virtual certainty that the constitutional issues in controversy in the ACA will ultimately be resolved by the U.S. Supreme Court.

The timing and outcome of the legal process in this matter is speculative at best. What is currently certain, however, is that the Federal government is continuing to implement the ACA at considerable cost to the taxpayers. If the Northern District of Florida court’s decision is upheld, State governments which have proceeded with implementation facing considerable risks if they do not do so, will have needlessly expended considerable sums of their taxpayers’ money. It is no small matter that employers find themselves similarly and expensively caught between a judicial ruling that invalidates the ACA and an Administration in Washington, DC that insists on plowing ahead with implementation as though this matter had never arisen.

Under the present circumstances we believe it is simply prudent to impose a moratorium on further implementation of the ACA until such time as the pending litigation is brought to its conclusion. This is exactly what the Hutchison Amendment would accomplish.

Earlier Shopfloor posts on Start Over!

The most puzzling of all the decisions that went into the legislative maneuvering that gave us the benighted Patient Protection and Affordable Care Act a year ago today was, why no acronym-inviting title? You would have thought if Congress was going to so dramatically expand the federal government’s control of health care and insurance, it would embrace a grandiose, if forced, title that would give us an acronym for the ages.

You know, like the PATRIOT Act, or RICO, or last year’s SPEECH Act (Securing the Protection of our Enduring and Established Constitutional Heritage Act). Give the law a name to remember it by.

No such luck. Democrats and other supporters usually drop the “Patient Protection” part to refer to the law as simply by the anodyne Affordable Care Act. Republicans deride it as Obamacare.

Such a missed opportunity for truth in acronymization. Is it too late? If not …

• The HEALTH Act — Helping Eliminate Affordable, Life-extending Treatments, Hospitalization Act
• The NANNY Act — The Not Affordable, Nope, Not Yet Act
• ABCDE Act — A Bill that Cost Democrats Election Act

Oh well. Some good commentary as the anniversary festivities subside…

• Sen. Ron Johnson (R-WI), a manufacturer, Wall Street Journal, “ObamaCare and Carey’s Heart: My daughter probably wouldn’t have survived in a system where bureaucrats stifle innovation and ration care.”
• Heritage Foundation, The Foundry blog, “Obamacare’s Failed First Year“
• Dr. Jason Fodeman and Dr. David Gratzer, The Washington Times, “Obamacare: One year later –Stripping patients and doctors of authority over care“
• Joe Trauger, National Association of Manufacturers, Shopfloor blog, “Health Care Law at One Year: Little Protection, Not So Affordable”
• Editorial, Washington Examiner, “Obamacare is even worse than critics thought“

One year ago today, President Obama signed the Patient Protection and Affordable Care Act (PPACA), the great federal restructuring of U.S. health care. The law’s value in protecting patients is suspect, and it’s doing little to make health care affordable. So, after a year of implementation what has been the real effect?

PPACA: Neither Protective, Nor Affordable

We know that the promise of being able to keep our health plan if we like it was an empty one, and even the Administration’s own actuary admits this fact. When asked during a hearing in the House Budget Committee whether the health care law really allows people to keep the plans they like, Rick Foster stated that claim was “not true in all cases.”

We also know the bulk of the funding for the new entitlement program is based on fuzzy math at best and outright deception at worst. In a stunning admission before the House Energy and Commerce Committee, the Secretary of Health and Human Services admitted the Administration is counting reductions in Medicare spending as a credit to extending the solvency of the program while also using the same funds to “pay for” a large portion of the expected costs of PPACA. This double-counting allowed the Administration to claim the legislation would save the nation more than $100 billion over the next 10 years — a statement with as much veracity as the promise our health plans wouldn’t change.

As the law enters its second year of implementation, the National Association of Manufacturers will be watching several issues sure to emerge in 2011: the essential benefits package and accountable care organizations (ACO). The essential benefits package defines for all Americans what coverage must purchase in order to avoid penalties under the law. It’s easy to predict how this will turn out: All single men will have to buy a plan that covers pre-natal and post-natal care and all single women will have to have a policy that covers prostate cancer. This is not to say these aren’t important things to cover, but the inequity is clear.

What’s also clear is how the process of determining what is an essential benefit will be manipulated by well-meaning interest groups that will gauge their importance and influence on policymakers based on whether their particular disease category is included as an essential benefit. Special-interest coverage is hardly a strategy for controlling health care costs.

While accountable care organizations (ACOs) seem to be an attractive idea in some health care policy circles, there are some (this author included) who believe the consolidation and integration of hospitals and physician practices could do irreparable harm to competition in the marketplace. ACOs may work fine in a single-payer system like Medicare, but it could wreak havoc on negotiations for payment rates and the establishment of networks in a private market which depends on competition in order to arrive at a mutually agreed upon price for services. In small to medium-sized communities, this consolidation could lead to oligopolies or monopolies in health care services. Such an outcome would raise prices and make care less affordable.

Many proponents believed, and continue to believe, Americans will warm to the law once they see all the great things and reap all the rewards of the centralized command-and-control this law will bestow upon us. The results so far leave us cold. (continue reading…)

The House Judiciary Subcommittee on the Constitution holds a hearing this Friday on the major piece of civil justice reform legislation this Congress, the Lawsuit Abuse Reduction Act, which will amend the Federal Rules of Civil Procedure to discourage the filing of frivolous lawsuits. We have more on the legislation at Point of Law.

Bill McCollum, the former attorney general of Florida, argues in The Wall Street Journal for more transparency when state attorneys general hire outside legal counsel on contingency to sue people (mostly businesses) on behalf of the state. From “States and Lawyers’ Fees: Transparency Needed“:

Since the 2007 financial crisis, state attorneys general have stepped up consumer-protection enforcement and are well on their way to displacing federal authorities as the nation’s chief consumer-protection watchdogs.

As the former attorney general of Florida, I understand both the power and potential pitfalls of the job. This increased role and the increased visibility that comes with it mean that attorneys general must (and should) work that much harder to maintain public confidence in the integrity of their office.

The Supreme Court this week denied to hear the Competitive Enterprise Institute’s challenge to the 1998 tobacco settlement based on Congress’ failure to approve the deal as required by the Constitution’s compact clause. From CEI’s news release, “Supreme Court Declines to Hear Case Challenging Tobacco Settlement“:

“We regret the court’s decision not to take up a case of major constitutional and policy importance,” said Sam Kazman, CEI General Counsel. “The tobacco settlement imposed a massive national sales tax on cigarettes, without a single elected legislator at any level of government voting for it. This was a major power grab by state attorneys general at the expense of both citizens and our structure of government.”

Former Sen. Fred Thompson (R-TN) is lobbying for the Tennessee Justice Association against Gov. Bill Haslam’s legislative tort reform proposals. In the cover story for the Tennessee publication, CityView Magazine, he explains his reasoning and argues against damage caps in medical malpractice suits. We appreciated his comments about the misuse of the word “reform”:

I don’t know that there is a rush for tort reform but tort reform has kind of taken on an air of its own and you’re either for it or against it. There is no such thing as finance reform, there is no such thing as health care reform, there is no such thing as tort reform; it is only what is in the bill. It may be reform or it may just be change and not really reform. So everybody thinks all Republicans ought be for tort reform, and that if you’re not a Republican, than you should be against tort reform. I think both of those are fallacious. We ought to look at what’s being proposed.

And two interviews well worth reading …

• American Lawyer, “A Conversation With Class Action Objector Ted Frank,” about his Center for Class Action Fairness.
• The Daily Caller, “10 questions with ‘Schools for Misrule’ author Walter Olson,” on Walter’s new book, “ Schools for Misrule: Legal Academia and an Overlawyered America .”

NAM Key Vote letters get results!

The vote to pass H.R. 4, the Small Business Paperwork Mandate Elimination Act, was 314-112. Seventy-six Democrats joined the unanimous Republican caucus in voting to repeal the anti-business IRS 1099 filing requirement passed in last year’s Patient Protection and Affordable Care Act.

The “affordable” part was a canard, it appears.

The National Association of Manufacturers this afternoon sent a “Key Vote” letter (copy here) to the House of Representatives in support of H.R. 4, Small Business Paperwork Mandate Elimination Act of 2011. Excerpt:

H.R. 4 would repeal language in the 2010 Patient Protection and Affordable Care Act (P.L. 111-148) requiring businesses to file an Internal Revenue Service (IRS) form 1099 for all purchases of property and services in excess of $600. Previously, businesses were required to report only purchases of service and only from non-corporate entities. The new language essentially requires 1099 reporting for all transactions in excess of $600.

This reporting requirement is extremely onerous — especially for small manufacturers. The NAM supports efforts to ensure tax compliance, but not at the expense of manufacturers that are following the law.

How did this reporting requirement get passed in the first place? It’s almost as if the drive to pass a health care law overran common sense.

A committee of representative NAM member companies — half large, half small — determines which issues qualify as key votes. Results of the key votes are tallied to determine a member of Congress’ record on manufacturing issues.

During his briefing with bloggers today, Gov. Rick Perry of Texas repeatedly turned to the federalism and the 10th Amendment of the Constitution as core principles informing his approach toward domestic policy issues. Let states like Maryland or California experiment with high taxes or more regulations while Texas does the opposite, he argued. The American people can choose where they prefer to live.

We noted that several conservative Republicans on the U.S. House Judiciary Committee had expressed opposition to H.R. 5, the medical liability reform bill, on just those grounds.

“I don’t want national tort reform,” Perry said forcefully.

Let me tell you why. We have medical tort reform in the state of Texas. It works. We are a haven.  Twenty-six thousand doctors have applied to practice medicine in Texas since 2003 when our tort reform became the law in Texas. Here’s what disturbs me: If they pass a national bill, I would bet you dollars to donuts, it is weaker than what we’ve got in Texas. So our physicians would be in a less favorable position from the standpoint of protection from frivolous lawsuits. …

I don’t ever get confused that this issue’s about doctors. It’s about access to care, because what we’ve seen in Texas – and I don’t want to spend too much time on this — but what we’ve seen in Texas was that because of the proliferation of frivolous lawsuits that occurred in Texas in the ‘90s and the early part of the 2000s, you had particularly high risk for specialties like OBY-Gen, orthopedic surgeons.

And…

In the grand and global sense, anything in the constitution about tort reform? Leave that to the states. Come down and actually put the people on the border. Put the aviation assets in the air so we can have the protection for our citizens, and frankly, the Mexican citizens as well, and stop these drug cartels. That IS a federal responsibility that they are abject failures at, at present.

The first quotes are here as an .mp3 file, and the second cut is here.

The governor’s position, most directly applicable to caps on punitive damages, is not a popular one with House Republicans who view medical liability reform as an important element of their drive to control health care costs.

There are provisions H.R. 5 that clearly involve interstate commerce and are thus appropriate for federal legislation, specifically the treatment of drugs and medical devices that are approved by the Food and Drug Administration. See our post, “Why Medical Liability Reform Matters to Manufacturers.”

Hans von Spakovsky at the Heritage Foundation explains why the Supreme Court’s 6-2 opinion released Tuesday in Bruesewitz v. Wyeth is so important to children’s health. From “Supreme Court Ruling On Vaccines Keeps Kids Safe“:

I don’t usually feel a personal connection to a Supreme Court decision, but as the parent of three children, I was elated (and relieved) to see the Court come to the right conclusion today in Bruesewitz v. Wyeth. The Court’s holding that state tort suits against vaccine manufacturers are preempted by federal law is absolutely crucial to maintaining the continued availability of the many vaccines that protect the lives and health of tens of millions of Americans, particular school-age children like mine.

Hans notes the collapse of the “vaccines-cause autism” claims, which were even mocked recently in Doonesbury.

Pfizer, which now owns Wyeth, issued a news release on the ruling Tuesday, “U.S. Supreme Court Decision In Bruesewitz V. Wyeth A Win For Public Health.”

For extensive commentary on the ruling and federal preemption, including the relevance to manufacturers, see Jim Beck’s discussion at the Drug and Device Law Blog, “Notes on Bruesewitz.” Beck is really good.

1) Express preemption has more friends on the Court than implied preemption.
(2) The great DTP versus DPT controversy has been definitively settled in favor of DTP. As we recall from doing vaccine cases pre-Act, that’s a defense win.
(3) Vaccines have successfully staked a claim to the ultimate public good in our sandbox, and the Supreme Court knows it.
(4) Vaccine manufacturers were “immunized” from warning claims before (assuming compliance) and with design claims now barred, the only thing really left for a non-listed-injury vaccine plaintiff is a defective manufacture/violation claim. This result could create pressure to list more injuries as within the program.

Beck makes 22 points in all.

UPDATE Wall Street Journal editorializes, concluding: “The trial bar has preyed on parents, especially those of autistic children, by telling them someone is to blame for their child’s diagnosis. Study after scientific study has debunked these claims, and the Supreme Court’s decision will at least prevent the lawyers from cashing in by exploiting heartache.”