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O'Melveny's Dellinger Comments on High Court's Consideration of Health Care Act Challenge

November 14, 2011 With the United States Supreme Court expected to make an announcement soon as to whether it will grant one of the five petitions before the Court challenging the constitutionality of the Patient Protection and Affordable Care Act of 2010, several publications sought comment from O'Melveny Appellate partner and former acting solicitor general Walter Dellinger.

"It is virtually certain that the Court will make an announcement on Monday," Dellinger told MSCNBC.com for its November 14 report. "They held a private conference that included whether to take some or all of these petitions on Thursday and would ordinarily announce those decisions on Monday." He also noted that the Court "sometimes decide[s] to ‘re-list’ a petition for the next conference and give it further consideration before announcing a decision," making it possible, but "not likely, they would do that with the health care cases if they wanted more time to decide just which combination of cases to take.”

The Washington Post’s November 13 article “What does Supreme Court decision on Social Security mean for health-care act?” also quotes Dellinger, who said he believes that if a single-payer plan were to be considered constitutional, it is unlikely that the Court “would then stand in the way of a more market approach.”

In the November 14 article “Health Law Puts Focus on Limits of Federal Power,” The New York Times quoted a statement Dellinger made in February to the Senate Judiciary Committee. Responding to those who argue that permitting Congress to require people to purchase health insurance creates a “slippery slope,” Dellinger had said that “Slippery slope arguments are themselves often slippery. If it is within the scope of regulating commerce to set a minimum wage,” he said, “one might argue, then Congress could set the minimum wage at $5,000 an hour.” He went on suggest, the article reports, that practical, political and legal considerations would prevent such a development from ever occurring.