Posts Tagged ‘Neal Katyal’

Skeptical Federal Appellate Court Hears Arguments on the ACA

Wednesday, August 3rd, 2011

Attorneys representing 26 states – with Florida taking the lead – locked horns with the Obama administration in the U.S. Court of Appeals for the 11th Circuit over the constitutionality of the Patient Protection and Affordable Care Act (ACA).Florida, 25 other states and the National Federation of Independent Business claim that the “individual mandate” violates the Constitution’s Commerce Clause by requiring that Americans buy healthcare insurance or pay a penalty.

Arguing for the Obama administration was acting Solicitor General, Neal Katyal, who said “People are seeking this good already in untold numbers.  The good of healthcare.  It’s purely financing.  It’s about failure to pay.  Not about failure to buy.”  Katyal pointed out that the 50 million Americans who currently lack healthcare insurance too often end up in emergency rooms for medical treatment, driving up costs.  Defending the law, Katyal emphasized the special nature of healthcare and the insurance market today.  He said billions of dollars incurred by people without insurance are passed on to people who carry insurance.  Arguing for the states, attorney Paul Clement conceded that the government can enact laws that people acquire healthcare insurance, but not until they need medical care.  Prior to that, “they’re not engaged in commerce.  They’re sitting in their living rooms,” Clement said.

The three-judge panel seemed to be skeptical about the government’s position. “I can’t find any case like this,” Chief Judge Joel Dubina said.  “If we uphold this, are there any limits” to the federal government’s power?  Judge Stanley Marcus said “I can’t find any case” in the past where the courts upheld “telling a private person they are compelled to purchase a product in the open market…Is there anything that suggests Congress can do this?”

So far, three federal district judges have upheld the ACA while two have ruled it is unconstitutional.  Three cases were heard by appeals courts, with a fourth appellate panel planning to hold a hearing in September.  The current case has attracted the most attention because it involves 26 state attorneys general who jointly challenged the law.  Additionally the Atlanta-based 11th Circuit is considered one of the nation’s most conservative federal appellate courts.

If any appeals courts declare the law unconstitutional, the case likely would be heard by the Supreme Court — perhaps during the election year.  Legal experts believe the 11th Circuit is more likely to rule against the administration.

The hearing was a government appeal of a decision by Florida-based U.S. District Judge Roger Vinson that ruled against the insurance mandate and voided the healthcare law.  According to Vinson, the mandate exceeded Congress’ power to regulate commerce because, instead of involving the usual “economic activity,” it targeted “inactivity,” in other words, someone’s decision not to purchase insurance.  This case is high profile because it was brought by more than half of the states; additionally, it tests an unprecedented lower-court ruling that invalidated the entire law.

One of the appellate judges asked Katyal if there are there any limits on Congress’s power to compel people to act. “Absolutely,” Katyal replied.  “We are not saying that Congress can force somebody to buy something and that failure to do so is economic activity.  People are seeking that good already,” he said.  Katyal said $43 billion is spent annually on care for the uninsured.  “That’s quintessentially economic,” he said.  Clement argued that the crux of the issue is whether the federal government can regulate individuals.  “For 220 years, Congress never saw fit to exercise that power,” he said.  “The whole reason we do this is to protect individual liberty.”  According to Clement, the Commerce Clause regulates people engaged in commercial activity and does not force them to engage.

Writing in The New Republic, Jonathan Cohn is reluctant to say how he thinks the court will rule.  “I didn’t hear the entire oral argument, which C-Span helpfully broadcast.  (Note to the federal judiciary: There’s this thing called the internet and it can transmit audio files.)  But I, too, came away genuinely uncertain how the court will rule.  The judges seemed a lot more ornery during the questioning of Katyal than they did during the questioning of Paul Clement, the former solicitor general arguing on behalf of the states filing the lawsuit.  But the actual substance of those questions – and some side comments that the judges made – suggested they were ready to reject essential pieces of the legal challenge.  Particularly striking were a series of comments from Frank Hull, in which she (yes, Frank is a ‘she’) stated repeatedly that she did not agree with the ‘activity-inactivity’ distinction opponents of the law have made.  As those of you following this case know, that’s really the heart of their argument:  They say the decision not to buy insurance is a form of ‘inactivity,’ which means the government may not regulate it.  Supporters of the law, including the government, disagree.  And Hull seemed to side with them, saying (roughly, given my sketchy notes):  ‘When I decide I would rather spend my money differently…that I would rather buy this product than pay for health insurance…that’s an economic decision…How can that be anything other than an economic decision?’”

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.

Supreme Court Rejects Early Attempt to Repeal Reform

Wednesday, April 27th, 2011

If Virginia Attorney General Ken Cuccinelli thought his lawsuit to overturn the Patient Protection and Affordable Care Act (ACA) was on a fast track to the United States Supreme Court, he was wrong.  The Supreme Court has deferred action on Virginia v. Sebelius (10-1014) for the time being.  Virginia is one of 27 states claiming that President Barack Obama’s healthcare reform law is unconstitutional, and wants the justices to take the extraordinary action of scheduling arguments without waiting for rulings by the four appeals courts that are ready to review the law.  The lawsuit names Department of Health and Human Services Secretary Kathleen Sebelius as the defendant.

“The constitutionality of the minimum coverage provision is undoubtedly an issue of great public importance,” acting U.S. Solicitor General Neal Katyal argued.  “This case is not, however, one of the rare cases that justifies deviation from normal appellate practice and requires immediate determination in this court.”

“This could mean that a justice is writing a dissent from the denial;  or that a justice is writing a statement respecting denial; or that a potential fourth justice to grant is unsure and needs more time; or even that the Court is unsure whether to deny or dismiss the petition (for lack of jurisdiction),” writes Brad Joondeph of the ACA Litigation Blog, which follows challenges to the healthcare reform law.  “We just don’t know.”

Two federal judges have ruled the law’s individual mandate is unconstitutional, while others have upheld it.  The Obama administration holds that appeals courts should hear arguments that have been scheduled in four appeals courts over the next five months.  Critics claim that the differing opinions so far are creating legal uncertainty and should be resolved as quickly as possible by the Supreme Court.

Writing in the SCOTUSblogLyle Denniston said “The Supreme Court left unresolved, at least for the moment, the fate of the state of Virginia’s attempt to get the Justices to rule on a very fast track the broad challenge to the constitutionality of a key feature of the new federal healthcare law.  The plea by the state to take up the validity of the new mandate to buy health insurance, before any federal appeals court rules on it, was before the Justices at their Conference last Friday, but no order on it came out with the Monday list.

“The Court usually does not explain its failure to act on a case that it had considered in Conference, and it is unclear whether the case will be put before the Court again at its next private session.  It is conceivable that the Court has voted to deny ‘certiorari before judgment’ (the technical description of the state’s plea), and that someone is taking time to prepare a comment or dissent from such a denial.  That would only become known if and when an order comes out in the case,” according to Denniston.

Analysts believe that any Supreme Court review would be deferred until its 2011-12 term that begins in October, depending on how quickly the appeals courts rule.  Kevin Russell, a Washington attorney who argues before the Supreme Court, said it would be unexpected if the justices granted Virginia’s appeal seeking expedited review.  “The court has granted only a handful of such requests in the past and almost never over the objection of the federal government, which has opposed Virginia’s request,” he said.

Is the Affordable Care Act on a Fast Track to the Supreme Court?

Tuesday, March 29th, 2011

As Virginia seeks review of the Patient Protection and Affordable Care Act (ACA) by the United States Supreme Court, the move hasn’t impressed the Obama administration, which is urging the high court to not allow bypassing federal appeals courts.  The administration feels so strongly about a go-slow approach to sending the law to the Supreme Court for a decision on whether it is constitutional that the Department of Justice has filed a brief stating that they are in no hurry.  The brief notes that “Accordingly, granting certiorari before judgment in this case would not necessarily result in significantly accelerating the Court’s review of the constitutionality of the minimum coverage provision.”

The brief, filed on behalf of Health and Human Services Secretary Kathleen Sebelius, said “Especially given the imminent consideration of this case, there is no basis for short-circuiting the normal course of appellate review.”  The move was in reaction to Virginia’s Attorney General Ken Cuccinelli’s efforts to have its lawsuit bypass the appellate process and go directly to the Supreme Court.  Virginia has appealed regulatory amendments implemented by the healthcare reform law, arguing that federal government has surpassed its powers as defined in the Constitution.  Additionally, Cuccinelli says the Affordable Care Act is an issue of national importance that requires Supreme Court’s mandate.  The regulatory amendments include the compulsory purchase of health insurance by citizens, who must pay a penalty if they refuse to comply with the law.

Acting Solicitor General Neal Katyal wrote,  “there is no basis for short-circuiting the normal course of appellate review” and the Virginia case may lack sufficient standing.  Additionally, the case challenges the law’s mandate to buy health insurance, which does not go into effect until 2014.  In January, a Virginia federal struck down the mandate and the case now goes to the appeals court level.  In other challenges, a judge in Florida ruled against the whole law; three other federal judges have upheld the law.

Cuccinelli believes that the Supreme Court needs to act quickly to bring balance to differing lower court rulings on the healthcare reform law.  In the unlikely event that the Supreme Court agrees to hear Cuccinelli’s case, it probably would not be considered until the new term begins in the fall of 2011.  The Supreme Court has rarely agreed to hear cases prior to full review by the lower courts.