In 2009, when the Affordable Care Act was being written, part of the proposal included four basic conservative ideas intended to get bipartisan support for the bill:
1) Individual Mandate -- A concept that originated with the Heritage Foundation and George H.W. Bush that, rather than the general public bearing the responsibility for paying the hospital costs of the uninsured, that people should be required to take individual responsibility and obtain insurance. (To keep liberals on board and assure that everyone would be able to purchase insurance, the federal government would provide a subsidy to reduce the costs for lower income levels.)
2) Improving Access to the Market -- Rather than going through middlemen (insurance agents and brokers), individuals would be able to use the internet to comparison shop in Amazon-like on-line insurance marketplaces.
3) Federalism -- Rather than the federal government designing a one-size-fits-all national exchange, each state would design their own exchange to meet local needs.
4) Fully Funding Mandates -- While the overall program would include an expansion of Medicaid coverage, the federal government would fully fund the expansion initially and, in the future, would fund 80-90% of the cost of the expansion.
In setting up the schedule for when different parts of the bill would go into effect, the schedule implicitly assumed that Republicans would be on board for these basic concepts and, for the first several months, their opposition to the Affordable Care Act did not focus on these parts of the proposal. However, after some focus groups, they discovered that the individual mandate (their own idea) was unpopular and used it as the centerpiece of their opposition. More importantly, having done their best to make the Affordable Care Act unpopular, state level Republicans found themselves unable to accept any part of the Affordable Care Act -- even ones that they would normally take advantage of.
Unfortunately, that has led to many of the problems now emerging in the complaints about Healthcare.gov -- either directly or indirectly.
When the bill was drafted, the first assumption was that most states would adopt the Medicaid expansion -- particular as the options where to participate in New Medicaid or cease participation entirely. However, in an unprecedented decision, the United States Supreme Court found that somehow it was unconstitutional for Congress to change the rules governing a federally funded program run by the states and had to keep funding the old program for states that did not want to change. As a result, only about half of the states have adopted the Medicaid expansion, leaving more people needing to purchase individual policies in the market place.
Decisions to come shortly on three cases. As decisions come in revese order of seniority, the Health Care cases are expected to be last. How long it takes to reach them will depend on how long the comments from the bench (both by the author and by any dissenters who wish to comment from the bench) take.
Besides the Health Care cases, the other major opinion left outstanding is the Stolen Valor Act -- criminaliing the making of false representations about military honors received. The Roberts Court is developing a reputation for taking a broad view of the Free Speech Clause and a narrow view of traditional exceptions to that clause (and not just in campaign finance cases). I will have more on that in a week or so after I have digested the last two weeks of opinions. This case could confirm that reputation.
Updates will follow as opinions are released and posted.
Update 1: Justice Kennedy has the judgment and plurality opinion in United States v. Alvarez. By a 6-3 vote, the current version of the Stolen Valor Act is unconstitutional. Justice Breyer and Kagan concur suggesting that the problem is the current language in the Stolen Valor Act, implying that a revised version might not violate the First Amendment.
Update 2: Second case (First American dealing with mortgage fees was dismissed). Health Care opinion, per Chief Justice Roberts, finds that individual mandate survives under the Tax and Spend Clause. Medicaid provision apparently "limited." Bottom line appears to be that full Affordable Care Act is constitutional, but may be some restrictions on ability to terminate states from participation in the Medicaid program.
As is not unusual, it is taking a bit of time for opinions to post properly, so will be back around 11:00 a.m. EDT with links to the opinions added in, and a little more clarity on the ACA decision.
Update 3: Justice Roberts issued the opinon of the Court only with respect to the anti-tax injunction and the tax and spend clause. He speaks for himself on the Commerce Clause and Necessary and Proper Clause, and for himself, Justice Breyer, and Justice Kagan on the Medicaid Expansion.
Justice Ginsburg writing for herself and Justice Sotomayor on the Medicaid Expansion finding it fully valid, but agrees with Justice Roberts that Congress would have wanted the penalty provision (cutting off funding from states that did not want to join the expansion) severed if that provision was found unconstitutional. Justice Ginsburg writing for herself, Justice Sotomayor, Justice Breyer, and Justice Kagan would find the mandate consitutional under the Commerce Clause.
A joint opinin for the four dissenters (Scalia, Kennedy, Thomas, and Alito) would find that the individual mandate is not justified by either the Commerce Clause or the Tax and Spend Clause. They would find that the size of the Medicaid program makes it per se coercive. (Note: Their reasoning would arguably invalidate the existing program, not just the expansion.) They would also reject any request for severability.
Justice Thomas also writes separately to suggest that the test of "affecting commerce" is an inappropriate Commerce Clause Test.
Bottom Lines: 9-0 that Anti-Tax Injunction does not apply; 5-4 that the individual mandate violates Commerce Clause (but that finding might be non-binding dicta as); 5-4 that the individual mandate is authorized by the Tax and Spend Clause; 7-2 that the penalty provision of the Medicaid Expansion is an unconstitutional condition but 5-4 that the penalty provision is severable giving states an option to participate in Old Medicaid or New Medicaid.
By Friday, the Supreme Court will have recessed for its three-month summer vacation (unless something very unexpected happens). Between now and then, it has several significant decisions to make. For those trying to figure out what will be happening this week (i.e. when they need to take a quick look at their favorite network news site or this site), here is what will happen as best as can currently be determined.
The Supreme Court will be in session on Monday at 10:00 a.m. EDT. They have not yet announced any additional sessions for this week. Normally, they would have announced such sessions by yesterday. That does not mean that they will not announce on Monday that there will be an additional session, just that for now the omens are that Monday will be it.
The first order of business on Monday will be the announcement of the orders of the Supreme Court. The orders are the weekly list of which cases they have accepted for argument and which cases they have turned down. For the first three months of arguments in the next term (October, November, December), review has to be granted now to give the parties enough time to brief the case. At this point, 20 cases have been granted argument for next term. There are 32 argument spots in the first three months of next term. While this Court has been historically stingy on granting review, a mere seven arguments per session (with seven sessions total) would probably set a modern record. At the top of the list of possible grants out of Monday are the Bullock case out of Montana (a challenge by the Montana Supreme Court to Citizen's United) and the latest round of the Mount Soledad Monument case.
After the announcement of the orders, the announcement of decisions begins. Decisions are announced by the Justice who issued the opinion (in rare cases by the Justice who wrote the plurlity opinion when there is no majority opinion). This consists of the Justice reading a brief summary of the opinion. If there is a dissent, the Justice who wrote the dissent has the option to read part of the dissent from the bench.
Decisions are read in the reverse order of seniority. While we do not know for sure who has each of the remaining cases, there are two potential tea leaves.
First, cases are assigned by the senior Justice in the majority. (The Chief Justice is considered to be the most senior.) For all practial purposes, that means that opinions are assigned by Chief Justice Roberts or Justice Scalia or Justice Kennedy. (Technically, Justice Thomas or Justice Ginsburg could be the senior Justice in the majority, but this rarely happens. In 2010, Justice Thomas was the senior Justice in one case).
Second, in assigning cases, the Justices responsible try to keep the workload balanced. As a result, with most opinions decided, we can guess at who has the remaining opinions -- barring reassignment when a Justice loses the majority after the opinion was assigned. (This may have happened to Justice Sotomayor in October when she was not the author of the majority opinion in any case but ended up concurring in the Judgment in Compucredit.)
First up would be Justice Kagan. She is one of two Justices who did not have any cases in February yet. My hunch (given comparative workload prior to February) is that is it slightly more probable that she was assigned Alvarez (the stolen valor case). If so that case would be the first issued on Monday.
The next Justice up would be Justice Sotomayor. However, it looks unlike that Justice Sotomayor has any cases still outstanding.
In an unusual move, the Supreme Court set an entire week's argument docket aside for the arguments on the Affordable Care Act. (The Supreme Court only has fourteen weeks of argument for the entire year in a typical year and normally hears six separate cases during a week).
For more detailed information about the arguments Scotusblog has done an excellent job of following the cases and has a case page which includes a separate detailed analysis for each of the four issues.
Monday's morning argument deals with the Anti-Tax Injunction Act. This law, originally passed after the Civil War, requires that most lawsuits challenging the validity of the tax must be postponed until after a challenging party has actually been required to pay the tax. At an early point in the case, the Administration suggested that the sum to be paid by those who do not get insurance might qualify as a tax. While the Administration no longer takes this position, the Fourth Circuit (and one of the judges on the DC Circuit) have held that the Anti-Tax Injunction Act does apply. Since the Administration has backed off from its earlier position, the Court appointed a lawyer to argue on behalf of the position taken by the Fourth Circuit.
Three key things about the Anti-Tax Injunction Act. First, it applies to other taxes beyond the Affordable Care Act. Thus, the Administration has taken a position supporting a broad interpretation of the Anti-Tax Injunction Act (merely suggesting that this fee is not a tax), but the challengers (the National Federation of Independent Businesses and 26 states) have argued for a narrow interpretation that greatly restricts the availability of the act in other cases. Second, the biggest hallmark of the Rehnquist and Roberts Courts have been a tendency to support procedural rules that prevent parties from ever raising a claim in court. Third, this issue is really about the minutia of statutory construction what did those members of Congress in the 1860s mean by a tax and does the fee established by the Affordable Care Act fit that technical definition.
The Court has given the Court appointed attorney 40 minutes, the Solicitor General 30 minutes, and the challengers 20 minutes. (Guess who is not getting what they want on this issue)
Tuesday's morning argument is the big enchilda -- the constitutionality of the individual mandate. Not much more needsto be said about this issue that has not already been said. There are three clauses of the Constitution at issue here (all part of Article I, Section 8) -- the commerce clause, the tax and spend clause, and the necessary and proper clause. While the severability argument is not until Wednesday, the positions taken by the parties on that issue show that the Administration has thought more about the Necessary and Proper Clause than has the other side. Two things to look for when the audio and transcript is released on Tuesday afternoon. How many references are made to the 1792 Militia Act which required every able-bodied man to own a firearm? Is any mention made of the fact that one of the plaintiffs had to file bankruptcy due to health care costs?
The remainder of the Supreme Court term is looking like a political hot potato for the Supreme Court.
Aside from the mammoth health care reform case, there are several other cases that have the potential to create massive outrage -- only one of which is currently set for argument.
The oldest of the cases is United States v. Alvarez. This case involves a First Amendment challenge to the Stolen Valor Act -- a federal criminal statute that covers falsely claiming military honors. Some lower courts have found that this statute criminalizes speech in violation of the Free Speech Clause. The easy out for the Supreme Court is to find that this case is about fraud, a traditionally-recognized exception to Free Speech. However, arguably the Stolen Valor Act is broader than just covering fraudulent conduct.
Still pending on application for certiorari is Bluman v. FEC. This case was on last week's conference but got postponed until the January conference. The issue in the case is whether restrictions on campaign contributions by "foreigners" violates the First Amendment. Given past Supreme Court holdings that campaign contributions are speech, these restrictions clearly implicate the speech rights of non-U.S. citizens (and nothing in the First Amendment is limited to citizens). The issue below was whether there was a compelling interest in precluding nationals of other countries from influencing U.S. elections. If the Supreme Court decides in January to take the case, it might be heard in the late April/early May sitting (and thus decided this June) or heard next October (possibly making it even more of an issue in the elections).
There are also a ton of gay marriage cases in the pipeline. Probably closest to reaching the Court is the Proposition 8 case which is likely to be decided by the Ninth Circuit in January. At this point, this case will not be argued this term, but it is likely to either be on one of the June conferences (or even worse in the "long conference" at the end of September.
However, last Friday and this Monday saw two very big cases land on this term's docket -- the Texas redistricting cases and the Arizona SB 1070 cases.
Of the two, the SB 1070 case is the simplest -- sort of. It is unquestioned that immigration law is primarily the responsibility of the United States government. However, the question before the courts in cases involving state laws implicating immigration is whether the federal laws on immigration were intended to preempt (bar) or permit state laws. Last year, in dealing with the first round of immigration laws from Arizona, the Supreme Court found that the federal immigration statutes expressly permitted states to penalize employers who hire unauthorized immigrants. This statute, however, seeks to impose penalties on immigrants (and may also require action on the part of federal agencies).
The more complicated case is the Texas redistricting cases.
As noted in the earlier post by Oreo, the Supreme Court granted certiorari (the legal term for the procedure by which the Supreme Court takes a case, technically it is an order to the lower court to send the record in the case to the Supreme Court) on Monday on three of the five pending cases -- all cross-petitions from different parties in the Eleventh Circuit Case.
To review the three cases and the full order:
Case Number 11-393 is the application from the National Federation of Individual Businesses. The issue that they raised in their petition was whether the rest of the Affordable Care Act could be severed from the individual mandate.
Case Number 11-398 is the application from the Department of Health and Human Services. In its petition, the Department raised the issue of whether the individual mandate is constitutional. The Department also suggested that the Court might wish to consider the issue raised by the Fourth Circuit of whether the Anti-Injunction Act (which bars pre-implementation law suits against tax laws) precluded the federal courts from considering this case prior to the implementation of the individual mandate and the associated tax penalty.
Case Number 11-400 is the application from Florida and other Republican-controlled states. In their petition, the states raised three questions: 1) do the changes to Medicaid mandated by the Affordable Care Act place "onerous conditions" on the funding given to the state under that program and therefore should be considered to be unconstitituional conditions; 2) is the employer mandate unconstitutional as applied to states; and 3) is the individual mandate unconstitutional (and if so are other provisions severable).
The Supreme Court's Order (page 3 of the list of orders from Thursday's Conference) indicated that the Court was taking the question from the NFIB petition, the two questions from the Department's petition, and Questions 1 and 3 from the Florida petition (but only on the issue of severability.
The Court's order also indicated that there would be extended oral argument on two of the four issues. On the issue of the constitutionality of the independent mandate, the Court ordered two hours of oral argument. On the issue of severability, the Court ordered ninety minutes of oral argument. The Medicaid issue and the Anti-Tax Injunction issue are being granted separate argument periods of one hour each.
According to Scotus blog, the expectation is that the argument will be on two of the March argument days, currently set for the weeks of March 19th and March 26th. As the Supreme Court just announced the January arguments, the actual argument dates will not be announced until around early January. Normally, all opinions from the term are issued by the last Monday in June.
As noted above, the Supreme Court did not grant certiorari on the employer mandate from the Florida case. They also did not issue any ruling on the Liberty University petition (from the Fourth Circuit) which raised (in part) the issue of the employer mandate as it applied to private employers. The Supreme Court also did not take any action on the Thomas More Center petition (from the Sixth Circuit). Whether the limation of certiorari to the one case that actually found part of the health care law to be unconstitutional (in light of the fact that the Supreme Court reverses the lower court in the majority of cases taken) is any hint of the feelings of the Court is unclear as they could just be trying to limit the parties to simplify oral argument.
Also of note is that neither Justice Thomas nor Justice Kagan recused from any of the three petitions.
On Thursday, five separate petitions regarding the Affordable Care Act (all three from the Eleventh Circuit case, the Liberty University case from the Fourth Circuit, and the case from the Sixth Circuit) will be considered by the United States Supreme Court. The Virginia case from the Fourth Circuit is technically not up for consideration. Thus, as early as late Thursday afternoon, but, more likely on Monday, we should know which of the three cases the Supreme Court will be hearing and what issues will be heard.
Today, the D.C. Circuit issued its opinion rejecting the challenge to the Affordable Care Act. The majority disagreed with the Fourth Circuit's conclusion that the challenge to the individual mandate could not be heard before 2014.
The most interesting opinion, however, came from Judge Kavanaugh -- a 2006 George Bush attorney (by way of disclosure Judge Kavanaugh was a year ahead of me at law school). Judge Kavanaugh agreed with the Fourth Circuit that the present challenge was premature. He then made some interesting comments about why courts should not rush to prematurely decide this issue.
"This case also counsels restraint because we may be on the leading edge of a shift in how the Federal Government goes about furnishing a social safety net for those who are old, poor, sick, or disabled and need help. The theory of the individual mandate in this law is that private entities will do better than government in providing certain social insurance and that mandates will work better than traditional regulatory taxes in prompting people to set aside money now to help pay for the assistance they might need later. Privatized social services combined with mandatory-purchase requirements of the kind employed in the individual mandate provision of the Affordable Care Act might become a blueprint used by the Federal Government over the next generation to partially privatize the social safety net and government assistance programs and move, at least to some degree, away from the tax-and-government-benefit model that is common now. Courts naturally should be very careful before interfering with the elected Branches’ determination to update how the National Government provides such assistance."
I find this language interesting because it shows that at least one conservative judge gets the internal inconsistency of the legal position being taken by the plaintiffs in these cases as a matter of political convenience or, to use more blunt terms, their barely disquised hypocrisy. The position taken by conservatives would permit the government to directly provide assistance -- whether health care, schools, or retirement -- programs but would ban an effort to privatize those systems while keeping the programs mandatory. In other words, if "Obamacare" is unconstitutional, so might be the Ryan plans to privatize Medicare and the Bush plan to privatize Social Security.
Last week, the United States (technically the Department of Health and Human Services) opted to not ask the US Court of Appeals for the Eleventh Circuit (Alabama, Georgia, and Florida) to grant a rehearing en banc (i.e. in front of all of the judges of the Eleventh Circuit) on the panel (three judges) decision striking down parts of the Affordable Care Act (primarily the individual mandate), upholding the rest, and finding that the individual mandate was severable. Immediately afterwards, all of the parties (the DHHS, the National Federation of Independent Businesses, and the 26 Red States) filed separate petitions for a writ of certiorari (the formal name for a petiition seeking review in the United States Supreme Court).
Part of what was driving this decision are the rules of the United States Supreme Court. Under Supreme Court rules, Under Rule 13, a party has ninety days from the "judgment" of the lower court (either an opinion of the Court of Appeals or a State Supreme Court or a denial of rehearing/discretionary review by the US Court of Appeals or a State Supreme Court -- whichever comes last). After a petition is "docketed," the other side has thirty days to file a brief in opposition (unless granted an extension). The case is "circulated" ten days after the brief in opposition is filed (or the parties waive the right to file a brief in opposition or time expires). Within those ten days, the party seeking certiorari may file a reply brief. It is the date of circulation that determines at which conference (the weekly meeting of Justices to discuss petitions for writ of certiorari and the past week's oral arguments) the petition is first considered.
If certiorari is granted, the party seeking certiorari has forty-five days to file a brief on the merits, followed by thirty days for the opposing party's brief on the merits, and another thirty days for a reply brief.
On the calendar, that means that the case from the Sixth Circuit -- "Thomas Moore Law Center" -- could be on the October 28th Conference or the November 4th Conference. The Eleventh Circuit case -- N.F.I.B. -- would possibly be on the November 22nd Conference or the December 2nd Conference. The first of the Fourth Circuit cases -- Liberty University -- was filed this week and thus would be on the December 2nd or December 9th Conference. In theory, Virginia could wait until early December to file its petition in its case, which would put the final case on the February 17th Conference. If certiorari is granted on two or three cases in early December, the argument will probably be held at the end of March or the end of April.
With that background, why did the U.S. not ask for rehearing and go directly to the Supreme Court.
First, it makes sense to hear all of the cases together. As the Sixth Circuit case is going to be considered in November, the Supreme Court might postpone a decision on that case by one month to get all of the pleadings on all of the cases and then decide which issues to grant review on -- employer mandate and medicaid changes could very easily be tossed out at this stage of the proceedings. If the US had filed for rehearing, the Supreme Court could have decided to just go ahead with the Sixth Circuit case instead of waiting. By filing its own petition for certiorari, the US gets to frame what it thinks are the issues that shoujld be reviewed.
On Friday, the Fourth Circuit (covering Maryland, Virginia, North Carolina, South Carolina, and West Virginia) issued opinions in the last two major cases challenging the Affordable Care and Patient Protection Act.
The first case was filed by Liberty University and two private individuals. The majority of the panel dismissed this case under the Anti-Injunction Act which precludes pre-enforcement challenges to the collection of taxes, finding that the penalties (which are automatically collected via corporate and individual income tax payments) qualify as taxes for the purpose of that act. One of the two judges in the majority and the dissenter also found that both the individual mandate and the employer mandate were constitutional under the federal government's taxing power (a postition that is contrary to the position previously taken by the Sixth Circuit and the Eleventh Circuit). The dissent would also have uplheld the mandates under the commerce clause.
The second case was filed by the Commonwealth of Virginia. The Commonwealth had passed its own statute proclaiming that the federal statute could not be enforced in Virginia. The Commonwealth then sued asserting that the conflict between its statute and the Affordable Care Act was sufficient to allow Virginia standing to challenge the validity of the federal statute. The Fourth Circuit rejected this claim based on long-established principles that the states have no authority to block federal law from being enforced in their state and, as Virginia did not claim that the new statute imposed an improper burdern on the government of Virginia, the Commonwealth had no authority to sue as the representative of individual citizens of the United States who happened to also reside in Virginia.
The ball has now shifted to the United States Supreme Court. They undoubtedly will take some of the four cases, but which ones, and which questions will they add based on the other cases. Right now, there seem to be four issues that are in dispute between the first four decisions and several relevant issues on which the courts are in agreement.
First, do the States have standing as anything other than employers? Second, are the individual mandates and employer mandates sufficiently tax-like to bar review of this issue prior to 2014. Third, are the mandates sufficiently tax-like to be authorized by the taxing clause (or the necessary and proper clause). Fourth, are the individual mandates authorized by the commerce clause (or the necessary and proper clause). These issues are the ones on which there is no consensus.
There are three issues on which there does not yet appear to be a split -- primarily because of the way that the courts have resolved the issues. First, do changes to medicaid unconstitutionally compel state action (an issue which will probably not be considered by the Supreme Courts. Second, are the employer mandates constitutional (if expressly addressed by the Supreme Court, it will only be if the Supreme Court strikes down individual mandates as employer mandates are constitutionally indistinguishable from minimum wage or family and medical leave -- a requirment imposed on the act of employment as a condition of employment). Third, is the individual mandate severable from the rest of the Act (Again, an issue that will only be reached if the court finds that the individual mandate is unconstitutional).
Right now it does not look like the first petition will be considered until the end of October (at the earliest). Depending upon whether the Supreme Court holds that case (from the Sixth Circuit) to wait for the other three cases, we could see the case being argued in the late Spring or next fall.