Posts Tagged ‘Commerce Clause’

U.S. Supreme Court Is Likely to Decide On the ACA This Term

Tuesday, October 11th, 2011

As of the first Monday of October, the United States Supreme Court is back in session and likely to make what could be a momentous decision on the Patient Protection and Affordable Care Act (ACA).  The nation’s highest court will consider President Barack Obama’s landmark healthcare overhaul, which impacts almost everyone in the country.  The Obama administration’s request last week that the justices resolve whether or not the healthcare law is constitutional makes it more likely than not that they will deliver their verdict by next June, shortly before the president and his Republican opponent move into the fall general election campaign.

Already, the GOP presidential candidates are taking advantage of virtually every debate and speech to attack Obama’s major domestic accomplishment, which extends health insurance to more than 30 million people who now lack coverage.  If, as expected, the justices agree to review the law’s constitutionality, those deliberations would define the court’s coming term.  Their decision could rank as the court’s most momentous since the December, 2000, ruling that sent George W. Bush to the White House.

According to the Med Page Today website, “The Obama administration petitioned the Supreme Court to decide on the constitutionality of the ACA, making it very likely that the high court will hear at least one of the cases challenging the landmark healthcare reform law before next year’s presidential election.  The U.S. Appeals Court for the 11th Circuit ruled in August that the individual mandate provision of the ACA is unconstitutional.  The Justice Department had until November to ask the Supreme Court to hear the case, but filing its petition sets the stage for oral arguments in the spring, and a final decision in June — at the height of Obama’s re-election campaign.  The 11th Circuit case was filed by 26 states that object to the ACA on a number of fronts, but opposition to the individual mandate is the main thrust of their argument.  The individual mandate, considered the linchpin of the law, requires everyone to have health insurance by 2014.  In its petition, lawyers for the Obama administration said the appeals court decision is ‘fundamentally flawed.’”

Supreme Court analysts say it is difficult to predict how the court would rule on the conservative challenge to the health care law.  Miguel Estrada argued several cases before the Supreme Court as an official with the Justice Department in the 1990s.  “The issues are really hard. Every time you ask the Supreme Court to overturn an act of Congress, it is a very difficult thing for the court to do. And Congress comes to the Supreme Court with a presumption of deference (to Congress) and constitutionality,” said Estrada.

Writing on the Big Think website, Robert de Neufville writes that “The administration’s decision strongly suggests that it will ask the Supreme Court to hear the case, since it doesn’t want the 11th Circuit’s decision to stand.  That puts the Supreme Court in the difficult position of having to rule on a politically charged piece of legislation during an election year.  Rick Hasen (of the Election Law Blog) that a Supreme Court decision is win-win for Obama: either the court affirms the constitutionality of the law or it seems to overreach by overturning it.  By the same token, ruling on the law may be a lose-lose proposition from the perspective of the court.  Whatever the court decides it will seem to be taking sides in a political struggle.  As Slate’s Dahlia Lithwick says,  there may not be five justices who want to want to make the court itself an election-year issue.  Lithwick says that “I don’t think Chief Justice John Roberts wants to borrow that kind of partisan trouble again so soon after Citizens United, the campaign-finance case that turned into an Obama talking point.  And I am not certain that the short-term gain of striking down some or part of the ACA (embarrassing President Obama even to the point of affecting the election) is the kind of judicial end-game this court really cares about.  Certainly there are one or two justices who might see striking down the ACA as a historic blow for freedom.  But the long game at the court is measured in decades of slow doctrinal progress — as witnessed in the fight over handguns and the Second Amendment — and not in reviving the stalled federalism revolution just to score a point.” 

The editors of Bloomberg Business Week fear the collateral damage that overturning the ACA might cause.  They note that “Should the Supreme Court take up healthcare reform this year?  So far, only one appeals court has ruled that the ‘individual mandate’ in ObamaCare — the requirement that virtually everybody must buy insurance, with government assistance if needed — overreaches the federal government’s powers under the commerce clause of the Constitution.  It’s not a trivial argument.  But an affirmative ruling would be a huge departure from our understanding of the commerce clause going back to the New Deal.  If the healthcare law’s individual mandate is unconstitutional, so is much of what the government has been doing for 80 years or so, and it will be the duty of the Supreme Court to sort through the ruins of the federal government as we know it and find a few shards to start building again.  We can’t help but suspect that the court will choose to avoid this opportunity, by not taking the case, by finding some other grounds for ruling, or by upholding ObamaCare.

“Ever since it passed in 2010, ObamaCare has been attacked as a costly and possibly unconstitutional intrusion of the federal government into people’s lives.  Almost the central issue in the campaign for the Republican presidential nomination has been the resemblance between ObamaCare and the state healthcare plan enacted in Massachusetts under then-Governor Mitt Romney.  Today, most Democrats feel the less said the better.  But if the new law loses in the Supreme Court, the political ramifications may look very different.  If the Supreme Court kills healthcare reform, it will stay dead a long time.  It took 17 years before anybody felt like scaling that mountain again after Hillary Clinton’s failure two administrations ago.”

Luck of the Draw: Virginia Appellate Judges Are Likely to Favor the Affordable Care Act

Tuesday, May 17th, 2011

As the Patient Protection and Affordable Care Act (ACA) heads to the 4th U.S. Circuit Court of Appeals, President Barack Obama may have lucked out.  Of the three judges who were randomly chosen to hear the case, two are Obama appointees; the third was appointed by President Bill Clinton.  In one case, the federal government is appealing a ruling that struck down the law’s requirement that all Americans must purchase health insurance or pay a penalty.  In the second case, Liberty University is appealing another judge’s ruling that upheld the healthcare reform law.

It’s highly likely that this court will uphold the ACA, because the rulings in the lower courts have closely tracked the judges’ judicial ideology.  Conservatives tend to strike down the law; liberal judges tend to uphold it.  After this, it’s likely that the Virginia attorney general will take the case to the United States Supreme Court, where swing voter Justice Anthony Kennedy could make or break the fate of the ACA.

Acting U.S. solicitor general Neal Katyal, who is representing the Obama administration, said that the law targets “problems in the national healthcare system that states individually have proven unable to solve effectively.”  The legislation, intended to make healthcare coverage more affordable for Americans, also reduces the current uncompensated care that results in higher premiums for people who already have insurance.  “The Constitution grants Congress the power to regulate conduct that substantially affects interstate commerce,” Katyal wrote in his brief.  “The requirement that participants in the health care market have insurance to pay for the services they consume is thus a quintessential exercise of the commerce power.”

The ACA’s supporters maintain that the law falls within Congress’s power to regulate interstate economic activities.  Opponents claim that the ACA represents a dramatic expansion of the federal government’s authority under the Constitution’s commerce clause.  The law lets the government regulate economic activities and also the inactivity of those who might opt not to purchase health insurance.

“The purpose of health insurance is to pay for expenses incurred in the health care services market,” Katyal said in his brief.  “That some participants in the healthcare market may be ‘passive’ in the insurance market – in the sense that they may not currently have insurance – has no constitutional significance.”  Buying and selling health insurance is a national economic activity, according to Katyal.  “The modern health care system operates across state boundaries. Most health insurance is sold or administered by national or regional companies that operate interstate, and pays for medical supplies shipped in interstate commerce,” he said.

E. Duncan Getchell, Virginia’s solicitor general, argued in his brief that the federal healthcare reform law’s individual mandate clashes with a state law seeking to protect the right of Virginians to decide for themselves whether to buy health insurance or remain uninsured.  “Because the claimed power to order a citizen to purchase a good or service from another citizen has no principled limit, it violates the … limits of the commerce clause,” Getchell wrote.

“The fact that the government is sending the solicitor general of the United States to argue the case does reflect how important the government considers this case to be,” said Lisa Blatt, an appeals lawyer at Arnold & Porter LLP in Washington.  Typically, the U.S. solicitor general usually only argues cases before the U.S. Supreme Court.

Healthcare Reform – 3; Opponents – 2

Wednesday, March 16th, 2011

The score on legal challenges to the Affordable Care and Patient Protection Act is now 3 – 2 – with the Obama administration and healthcare reform in the lead. Nor surprisingly, the three judges who have voted to uphold the law are Democratic appointees, while those who struck down the law are Republican appointees.

The law survived a challenge in federal court in Washington, D.C., the third win in a series of lawsuits attempting to overturn the legislation. U.S. District Judge Gladys Kessler threw out a lawsuit brought in June by five individuals who claimed the requirement that people obtain minimum insurance coverage starting in 2014 is unconstitutional.  Judge Kessler said Congress was acting “within the bounds” of its constitutional Commerce Clause power when it imposed the insurance requirement.  “The individual decision to forgo health insurance, when considered in the aggregate, leads to substantially higher insurance premiums for those other individuals who do obtain coverage,” Kessler wrote.  “Thus, the aggregate effect on interstate commerce of the decisions of individuals to forgo insurance is very substantial.”

A right-wing group called the American Center for Law and Justice (ACLJ) is appealing Judge Kessler’s ruling.  The group maintains that it is unconstitutional for the law to require that each person purchase insurance; they perceive it as a move towards adopting socialized medicine.  According to the appeal, the group wants to spare Americans “all of the horrors you have heard coming out of Canada (and) Europe, where it is a bureaucrat who decides — not your doctor — what care you have.”  According to Edward White, an attorney with the ACLJ, “That does not mean that Congress cannot fix the healthcare problem we have in this country.  It’s just the way they’re going about it now by requiring people to act and buy a product and using its Commerce Clause power to an extent that is beyond what Congress has ever done in the 200 some odd years of this country.”

Judge Kessler could not disagree more strongly: “To put it less analytically, and less charitably, those who choose — and Plaintiffs have made such a deliberate choice — not to purchase health insurance will benefit greatly when they become ill, as they surely will, from the free healthcare which must be provided by emergency rooms and hospitals to the sick and dying who show up on their doorstep,” she said.  “In short, those who choose not to purchase health insurance will ultimately get a ‘free ride’ on the backs of those Americans who have made responsible choices to provide for the illness we all must face at some point in our lives.”

Nearly one year after President Obama signed the healthcare reform bill, more than half of the states have challenged the legislation in the courts. In comments filed in a Florida federal court, representatives of the 26 states that successfully challenged the healthcare reform law asked the judge to halt the healthcare law’s implementation, according to The Hill. The comments are a response to the Obama administration’s request that U.S. District Judge Roger Vinson explain his January 31 ruling that the healthcare reform law is unconstitutional.  Of five federal court rulings on the reform law so far, Judge Vinson’s is the only one that strikes down the entire law.

Additionally, Florida and Alaska have declared the reform law effectively dead unless an appellate court reverses the decision.  Court comments by the 26 states – which were backed by the National Federation of Independent Business — said the Obama administration should have requested a stay, pending appeal, rather than request a clarification.  “If the Government was not prepared to comply with the Court’s judgment, the proper and respectful course would have been to seek an immediate stay, not an untimely and unorthodox motion to clarify,” the plaintiffs wrote.

Judge Rules That Healthcare Law Must Be Implemented as it Heads to the Supreme Court

Tuesday, March 15th, 2011

The same Florida federal judge who declared President Barack Obama’s healthcare reform law unconstitutional ruled that states must continue implementing it as the case goes through the courts. U.S. District Judge Roger Vinson was responding to a request from administration attorneys who sought to ensure that states obey the law until their challenge to it is resolved.  Two other federal judges have upheld the law; one in Virginia has ruled against it.  The law’s ultimate fate is expected to be decided by the Supreme Court. In all, three federal judges have ruled that Congress possesses the authority under the Commerce Clause of the Constitution to enact the Patient Protection and Affordable Care Act (ACA).  The mandate requires that all Americans acquire healthcare coverage.  Two other federal judges have voted that the healthcare reform law is unconstitutional.

“It would be extremely disruptive and cause significant uncertainty” to halt implementation, Vinson wrote.  He added that if the federal government does not appeal within seven days, the states can consider the law invalid.  The Justice Department welcomed the stay and plans to file an appeal within the required time frame.  David Rivkin, a lawyer representing the 26 states challenging the law, said the decision “gets us exactly what we always wanted, which is an expeditious appellate process.”

“The battle lines have been drawn, the relevant case law marshaled and the legal arguments refined,” Vinson wrote.  “It is very important to everyone in this country that this case move forward.”  In some ways, the ruling was a victory for the Obama administration because it ended confusion over whether states should continue working to implement the law. “We appreciate the court’s recognition of the enormous disruption that would have resulted if implementation of the Affordable Care Act was abruptly halted,” Justice Department spokeswoman Tracy Schmaler said in a statement.  “We strongly disagree with the district court’s underlying ruling in this case and continue to believe — as three federal courts have found — that this law is constitutional.”

“It almost seems to be that he’s (Vinson) telling the 11th Circuit what they’re supposed to do,” said Tim Jost, a professor at Washington & Lee University School of Law.  “I’m not sure they’re going to take very kindly to that.”  The case was brought by 26 states and the National Federation of Independent Business NFIB), which hoped for an injunction clearly barring implementation of the reform law.  “The government’s attempts to stymie the judicial process are simply prolonging the uncertainty surrounding the law and do a disservice to the states, small-business owners and individuals who are seeking resolution,” said Karen Harned, executive director of the NFIB Small Business Legal Center.

In her “Right Turn” column in the Washington Post, blogger Jennifer Rubin writes that “When U.S. District Judge Roger Vinson issued his ruling finding ObamaCare unconstitutional, liberals seemed to develop a reading comprehension problem.  He plainly stated that the law is unconstitutional, but defenders of ObamaCare seemed not to grasp that the judge meant the government was supposed to follow that edict.  Can we imagine the howls that would have gone up had the Bush administration acted with such brazen dishonesty and contempt for a court?”

According to Rubin, “In sum, the administration’s feigned lack of understanding of the court’s earlier ruling, a position egged on by the liberal cheerleaders for ObamaCare, has only served to speed up the next level of review of ObamaCare’s constitutionality.  Moreover, for an administration promising to ‘depoliticize’ the administration of justice and to be faithful defenders of the rule of law, this episode shows the chasm between administration rhetoric and behavior.”

Virginia Judge Rules Against a Key Proviso of Healthcare Reform Law

Monday, December 20th, 2010

A conservative federal judge in Virginia has ruled that a key provision of the Patient Protection and Affordable Care Act is unconstitutional. Specifically, U.S. District Judge Henry Hudson overturned the section of the healthcare reform law that requires all Americans to purchase healthcare insurance starting in 2014.  The Obama administration will appeal the decision, which is likely to end up before the United States Supreme Court.  Previous lawsuits in Michigan and Florida have been dismissed and additional cases are pending, including one filed by 20 other states.  Hudson agreed with Virginia Attorney General Kenneth Cuccinelli in saying the mandate overstepped the Constitution.

Hudson, who was appointed to the federal bench by George W. Bush, explained his decision this way.  “Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market,” he wrote.   “In doing so, enactment of the (individual mandate) exceeds the Commerce Clause powers vested in Congress under Article I (of the Constitution).  The outcome of this case has significant public policy implications.  And the final word will undoubtedly reside with a higher court.  At its core, this dispute is not simply about regulating the business of insurance — or crafting a scheme of universal health insurance coverage — it’s about an individual’s right to choose to participate.”

We are confident that this law is constitutional, and we are confident that the Supreme Court when, and if, it hears this case will agree that it’s constitutional,” an Obama administration official said.   White House healthcare reform director Nancy-Ann DeParle said the administration is encouraged by the two other judges who have upheld the law.  She noted that the Justice Department is presently reviewing Hudson’s ruling.