Posts Tagged ‘United States Supreme Court’

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.

Healthcare Law Repeal DOA in Senate; Likely Headed to the Supreme Court

Monday, February 14th, 2011

The Republican House of Representatives’ attempt to repeal the Patient Protection and Affordable Care Act was DOA — as expected — in the Democratic-controlled Senate.  Voting along strict party lines, all 50 Democratic Senators who were present and one Independent gave the repeal a thumbs down.  All 47 Republican Senators voted in favor of repeal.  Two Senators – one a Democrat and the other an Independent – were not present to vote.

Senator Barbara Mikulski (D-MD) delivered a scornful speech during the heated debate, saying the Republicans are offering “one more hollow, symbolic pander-to-the-masses amendment.  If you want to rewrite the bill, keep your promise, Republican Party, that if you want to repeal, then let’s go replace.  I want to hear their ideas for replacement.  I challenge them right here, right now, today on this amendment.”  Not surprisingly, Republican Senate leaders disagree with Senator Mikulski’s stance. “We think it is just the beginning,” Senate Republican Minority Leader Mitch McConnell (KR-KY) said Wednesday after the Senate voted to reject an amendment he offered to repeal the law.  “This issue is still ahead of us and we will be going back at it in a variety of ways,” McConnell noted.  “We’ll be looking at it in every different way to revisit it.”

The Republicans can claim a small victory as the Senate voted to repeal the 1099 requirement that was a highly unpopular inclusion in the healthcare reform law. Many perceived this as a tax on healthcare consumers and small businesses because it required anyone performing a transaction equaling $600 or more to file a 1099 form with the IRS.  The cost of the requirement had the potential to add up to 40 percent for some small businesses, which could have resulted in closures or layoffs.  The amendment passed the Senate by an 81 – 19 vote and has President Barack Obama’s support. Opponents of the amendment, such as Senator Carl Levin (D-MI), said that Congress, not the White House, should wield the budget-cutting ax.

The Senate’s actions come on the heels of a decision by Florida Federal District Court Judge Roger Vinson that it is unconstitutional for Congress to pass a healthcare law that requires Americans to obtain insurance coverage.  Judge Vinson’s decision created a 2 – 2 tie in lower courts. According to Judge Vinson’s decision, “The act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker.”

Judge Vinson’s decision increases the likelihood that the Affordable Care Act will end up in front of a Republican-dominated Supreme Court. “A year ago, it was a long shot,” said Randy Barnett, a law professor at Georgetown University.  “Now, it’s seen as a 5 to 4 case.  And nobody’s sure which way the 5 – 4 will come down.”  The stakes are enormous for the defining achievement of the Obama presidency.  The decision also has the potential to define the limits of federal power for generations.  “This case could define federalism for the next 100 years,” said Jonathan Turley, a George Washington University constitutional law professor.  “This is a very difficult case for the Supreme Court as an institution.  You have a slight majority of the states opposing it.  You have a national law that’s affecting hundreds of billions of dollars and services.  This is the type of case the justices do not relish.”

Additionally, Virginia Attorney General Ken Cuccinelli has asked the Supreme Court to fast track his state’s challenge to the healthcare law, saying he thinks the legal dispute has become so important that the nation’s highest court should take it up immediately. “We want to eliminate the uncertainty in both our governmental budgets and in the private sector,” he said.  “We want to eliminate at least the uncertainty associated with health care.” The Obama administration opposed the move, saying the case should follow the regular process.  This would put off until 2012 a Supreme Court ruling on the law that aims to provide more than 30 million uninsured Americans with medical coverage and cracks down on unpopular insurance industry practices.

Healthy San Francisco Covers the City’s Uninsured

Wednesday, July 21st, 2010

Healthy San Francisco, the innovative program that provides affordable healthcare services to an estimated 53,000 uninsured, was given the green light when the Supreme Court turned down a business group’s challenge.  The Supreme Court decision “is a victory for the 53,0000 San Franciscans who have healthcare today through our groundbreaking universal healthcare program,” said Mayor Gavin Newsom, who spearheaded the program.  “The high court’s decision…ensures we can continue providing healthcare coverage to thousands who otherwise would go without.”Healthy San Francisco covers 53,000 citizens who lack healthcare insurance.

Healthy San Francisco won unanimous approval from the city’s Board of Supervisors in 2006 and went into effect on January 1, 2008.  The law requires businesses with 20 or more workers to provide a certain degree of healthcare coverage for their employees.  Alternatively, they can pay a fixed amount into a city healthcare pool for every hour the uninsured employee works.  The Golden Gate Restaurant Association sued to overturn the law, claiming that the city could not legally force businesses to provide health benefits to its workers or participate in the city pool.  The Ninth U.S. Circuit Court of Appeals rejected that argument, as did the Supreme Court.

Healthy San Francisco provides a safety net to the city’s adults who have lacked healthcare insurance for 90 days.  It provides access to a network of hospitals and public and private clinics that provide low- or no-cost-care.  Tangerine Brigham, the program’s director, notes that “So far, about 1,100 employers have selected Healthy San Francisco as their option.”  Because participants are given a personal physician, expensive ER visits to San Francisco General Hospital fell 27 percent in the first years of the program.  A 2009 study by the Kaiser Family Foundation determined that 94 percent of participants were satisfied with Healthy San Francisco.

Supreme Court Nominee Kagan Faces Tough Grilling on Healthcare Reform

Monday, May 17th, 2010

Republican Senators plan to question Elena Kagan on constitutionality of healthcare reform law.  The recently passed healthcare reform legislation could play a role in Senate hearings on the nomination of Solicitor General Elena Kagan to replace Justice John Paul Stevens on the United States Supreme Court.  FOX News reported that Wyoming Republican John Barrasso, who is also a physician, intends to quiz Kagan on the constitutionality of the healthcare reform law.  He plans to focus on the individual mandate that requires all citizens to purchase some type of healthcare coverage.  According to Barrasso, “That’s a 10th Amendment issue.  She is going to have to make a decision, if she’s on the court, about how that goes forward with these 20 states suing.”  Senator Jeff Sessions, (R-AL), the ranking Republican on the Senate Judiciary Committee, agrees, saying “You’ll have that anytime you have a 2,000-page bill.  A judge has got to be able to say no even to a signature issue of the person who appoints them.”

When President Barack Obama nominated Kagan as his administration’s solicitor general, she was approved by the Senate by a 61 – 31 vote – with three Republicans who presently serve on the Judiciary Committee supporting her.  This time around, their level of support is unclear.  Complicating Kagan’s confirmation vote is the fact she was confirmed for her current post in March of 2009, long before the healthcare reform debate split Congress along strict party lines.

“I will be glad to counter the Republicans when they actually step forward into the light of day and make their arguments.  That will be the time to counter them,” noted Senator Patrick Leahy (D-VT), the Judiciary Committee’s chairman.