Posts Tagged ‘legal challenges to ACA’

The Supremes: Coming to a Theater Near You?

Tuesday, September 27th, 2011

Monday passed quietly with no sound of shuffling paper from the Department of Justice (DOJ) as they opted not to file a request for full review by the 11th Circuit Court of Appeals. The 11th Circuit decision is the darling of the media due to its large 26-state following. The case came about because a group of state attorneys general and some governors alongside the National Federation of Independent Business (NFIB) challenged the constitutionality of the requirement that all Americans purchase health insurance by 2014 if they can afford it.

The states and NFIB won their challenge in the 11th Circuit, leaving the Obama Administration with two options: file for a full review, or en banc, of the case (this means that most or all of the 11th Circuit judges review the ruling) or appeal directly to the Supreme Court. In the end, DOJ decided to bypass the en banc process. Alternatively, the full review request would have stalled the momentum toward the Supreme Court and potentially moved any court hearing into a post-election environment.

So we must assume that the DOJ is either feeling highly confident in their track record – the mandate was upheld in the 6th Circuit Court of Appeals, dismissed by the 4th Circuit Court of Appeals – or they believe that dismantling the political theater surrounding these cases regardless of the outcome is the most productive path to ACA implementation. Let us hope that it is both. Rumor has it that the Supreme Court closely watches the DC Circuit, and this Circuit heard an ACA-challenge case last Friday. That decision will be closely watched.

There is now a strong likelihood that the Administration will appeal directly to the Supreme Court and that the Supreme Court will take the case. The Supreme Court rarely rejects requests from the Federal government. The due date for this is November unless the DOJ asks for an extension. The plaintiffs, on the other hand, are feeling empowered by their 11th Circuit Court of Appeals win coupled with their high-powered lawyer, Paul Clement, former Solicitor General and experienced at arguing cases before the Supreme Court.

The next move is by Department of Justice. Wonder what they have up their sleeve? Here’s hoping it’s something good.

Politico has more information on potential timing of SCOTUS here.

– Eva Marie Stahl, Policy Analyst

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Choose Your Own Adventure: Possible Paths for ACA Legal Challenges

Tuesday, January 4th, 2011

Please note this post was updated 1/5/2011

In the midst of all of the legal challenges to the Affordable Care Act (ACA), there may be a lack of clarity for the average person regarding how these lawsuits proceed. We thought that we would take a brief moment to offer our readers a quick legal 101 on judicial process. Open our flowchart and follow along.

Where are we?
The day President Obama signed the ACA into law, Attorney General Bill McCollum of Florida held his own press conference in an attempt to steal thunder and oppose what he termed an infringement upon “state sovereignty.” The domino effect was almost instantaneous as numerous conservative-leaning states and their AGs jumped aboard the McCollum bandwagon with cries of constitutional betrayal. In other states where AGs refused to sign on (Democrats), governors sought state legislative approval to one-up the AG and join anyway. This was successful in a handful of states. While other lawsuits emerged (Virginia, Michigan, New Jersey, California, etc.), the group led by McCollum currently holds the spotlight – mostly due to its expansive plaintiff list. The AG in Virginia, Kenneth Cuccinelli, has also successfully brought suit against the ACA but his lone ranger approach, according to legal scholars, leaves his case an unlikely candidate for the Supreme Court of the United States (SCOTUS). Currently, we have a handful of rulings both for the plaintiff (Virginia and most likely Florida) and the defendants (Lynchberg and Michigan). The cases in the most advanced stage of the judicial process are 1) Michigan – now in appeal (6th circuit) and 2) the Cuccinelli case – now entering the appeals phase (4th circuit). The Florida case is now awaiting judgment by U.S. District Judge Roger Vinson.

Where are we going?
Structure
The country is divided into 94 federal judicial districts. Districts do not cross state lines. Districts fall into 12 circuits across the country – in other words, each circuit is made up of a handful of states, containing districts. Where you file (the district) determines what circuit court you travel through if there is an appeal. While trials begin at the U.S. District court level, appeals to these decisions are heard at the circuit level. For example, there are two cases regarding the ACA in the state of Virginia. One district ruling favored the federal government (Lynchberg) and one district ruling favored the state of Virginia (Cuccenelli). Both losing parties will petition the 4th Circuit of Appeals to hear their cases, challenging the lower court decision. The final court of appeals is the U.S. Supreme Court.

Currently the appeals process is the focus of the challenges to ACA, however, it is worth a quick recap of how the cases got to this point.

Process
Phase I – U.S. District Court:
The opponents to ACA (plaintiffs) begin their legal challenge by presenting a brief to their U.S. District judge outlining their argument. In the case of the ACA, this is focused on the individual mandate (the requirement that all citizens have health insurance). There are additional arguments challenging the constitutionality of the ACA, but the mandate is the main issue. Once the judge hears from the involved parties (plaintiff and the defendant), he or she determines whether or not there is an issue that needs resolution. This is labeled the “pre-trial phase.”

Once this is determined, briefs for trial are submitted – these often include amicus briefs. The amicus brief, or a “friend of the court” document has received a great deal of attention because it is the only public avenue for comment. An outside party may seek permission from the judge to submit an amicus brief to include additional information on behalf of the plaintiff or the defendant. In the current cases, there are numerous amicus briefs filed on behalf of the opponents to ACA (plaintiffs) and the Federal government (defendant). Following the filing of this information and enough time for the judge to review it, a trial begins. The trial phase gives plaintiffs and defendants an opportunity to argue their case before the judge. Once this concludes, the judge will deliberate and issue a judgment. This process may take anywhere from four months to a year.

Phase II – U.S. Court of Appeals:
One party will not like this judgment and will appeal – in other words, the losing party will ask another group of judges to review the U.S. District Court decision. In the appeals phase, a panel of judges (usually three) is appointed to hear a case within a circuit. The process mirrors the district process in that the plaintiff, the defendant, and friends of the court submit briefs before each party argues their case. The deliberation process differs in that three judges determine the outcome by majority vote. Once a ruling is handed down from the appeals panel – again, a party will not like the outcome — the losing party will most likely petition the Supreme Court to have their case heard (this is called “writ certiorari”). This process of brief submission, trial, deliberation and judgment can take up a year.

Phase III – U.S. Supreme Court (SCOTUS):
The Supreme Court does not have to hear the case – it receives over 8,000 petitions to be heard annually and chooses to hear only a small percentage of these cases. However, given the fanfare around ACA, it is likely that the case will be heard and that there will be divided opinions from different circuits that demand clarification on the constitutional issues raised by ACA. When and if a case is heard by SCOTUS, it will fall into their annual calendar, beginning in October. Rulings are not issued, often, until the end of the term – which is in June. Therefore, if SCOTUS picks up a case (probably Florida) in 2012 or 2013, it may not be reconciled until June of 2013 or 2014. So, sit back and bide your time, this will take awhile.

Is this political?
Of course it is! The strategy for Republicans is twofold: pick up court rulings in their favor in historically conservative circuits (ensuring success), therefore, branding ACA as dead in its tracks before full implementation and second, heading into SCOTUS with a constituent uproar over individual liberty supported by a handful or rulings and public discontent surrounding the individual mandate.

For supporters of the ACA, the best strategy is to gain public favor for the law. By engaging consumers and educating them about the positive effects and benefits of the ACA, advocates are increasing overall public support. If the law is embraced, it is less likely (and historically proven) that SCOTUS will tinker with a widely accepted law that benefits all of American society.

– Eva Marie Stahl, Policy Analyst

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No surprises. ACA opponents win over Virginia Judge

Tuesday, December 14th, 2010

Of the fourteen plus lawsuits brought against the federal government challenging the constitutionality of the Affordable Care Act (ACA), one has succeeded in winning the favor of a Virginia judge. Judge Henry Hudson of the US District Court for the Eastern District of Virginia ruled yesterday that the individual mandate, or the requirement individuals purchase health insurance by 2014, is unconstitutional. Hudson cites two main problems with the mandate’s constitutionality. Congress, in passing the mandate, has exceeded its power 1) to regulate commerce, and 2) to impose a tax or penalty when and individual chooses not to purchase health insurance coverage. In non-legal language — this means, according to Judge Hudson, that the government cannot require you to purchase a product (health insurance) or charge you a penalty (a tax) when you choose not to buy a product. Attorney General Ken Cucchinelli (Virginia) and his supporters view the ruling as a blow to the ACA. However, the real impact of the ruling is simply pushed further down the road when the Supreme Court will determine its fate.

What does this ruling mean for states right now?
Very little. Judge Hudson did not halt the implementation of ACA. In other words, it’s ‘business as usual.’ States and advocates should continue to push ahead with implementation and public education initiatives. As correctly pointed out by law professor Abbe Gluck in the New York Times’ “Room for Debate” — states, even those led by Governors opposed to the ACA, still have responsibilities to implement key pieces of the ACA in 2013 and 2014. Gluck notes that the individual mandate is an IRS (i.e. federal) relationship with individual citizens and does not specifically involve state government. Moreover, Hudson’s ruling involves one provision of the ACA (individual mandate), not the entire law. Therefore, the Virginia ruling does not grant anti-ACA state officials permission to impede the daily work necessary to implement the law and expand health care access to millions of Americans.

Where does this case go next?
It is unclear where this case will go next. AG Cuchinelli’s office is hopeful that the Justice Department will agree to bypass the appeals process and request a direct route to the Supreme Court. It is clear from Cucchinelli’s fervent pursuit of this case that he would like to get his case to the Supreme Court first (that is before Florida’s Attorney General Bill McCollum). Obtaining an agreement with the Justice Department to fast track the Virginia case would certainly increase his chances of being first in line to the Supreme Court while quieting the Florida case. The Florida case led by AG Bob McCollum begins its oral arguments on Thursday (December 16) before Judge Roger Vinson US District Court of Northern Florida.

However, the chances of fast tracking the case are slim and have little precedent.  Furthermore, Philip Klein of The American Spectator highlights the political back story of this strategy: “During the Bush era, the Fourth Circuit [Virginia] developed a reputation as the most conservative in the nation, in large part because it sided with the administration on a number of key national security decisions, particularly involving terrorist detainees. But the balance has shifted dramatically since then. Currently, Democratic appointees outnumber Republicans by an 8-to-5 margin, with two vacancies remaining.” In other words, the Justice Department is hopeful that the odds may shift in its favor during the appeals process.

The two major lawsuits challenging ACA often spotlighted in the media (the Virginia-Judge Hudson case and the Florida-Judge Roger Vinson case) both rest on a conservative political strategy to secure rulings against the ACA early on by entering the judicial system via traditionally conservative judicial circuits. Due to the lack of precedent and clarity in the arguments surrounding the constitutionality of the individual mandate provision, the rulings tend to appear more reflective of a political frame rather than a legal one. That being said, the Supreme Court is not an easy read. Many feel uncertain of how this strategy will play out for all stakeholders.

What should advocates be doing?
Advocates should not stop their work in educating the public about the benefits of the ACA. While it is true, according to polls, that people do not like the idea of the individual mandate — these same respondents are in support of all of its related elements: covering those with pre-existing conditions, securing preventative care for our seniors, and making sure that all children have access to health coverage and that young people may extend their parental coverage through age 26 — and the list goes on.

Let us not forget that Judge Norman Moon of the U.S. District Court for the Western District of Virginia ruled in favor of the constitutionality of the individual mandate just two weeks ago. Judge Moon stated that the individual mandate provision was within the power of Congress to regulate a highly sophisticated industry that affects all Americans.

Finally, Stephanie Cutter in her White House blog reminds us of the merits in support of the ACA and the individual mandate:

– History is on our side — popularly embraced programs such as Social Security, the Voting Rights Act and Medicare faced legal scrutiny after their passage.
– Those who choose not to purchase health insurance DO consume health care through emergency room visits, over the counter drug purchases and hospitalizations. They are active participants in the health care market.
– All consumers and care giving institutions such as hospitals, doctors and community health centers absorb the cost of care for those without insurance coverage. These costs were $43 billion in 2008.

– Eva Marie Stahl, Policy Consultant

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What are AGs good for?

Wednesday, December 8th, 2010

Beyond their traditional duties of legally representing state agencies and serving as an advisor to the Governor, state attorneys general over the last two decades have proven themselves defenders of everyday people in the name of the public good. One definition highlights this transformation as:

“Actions that benefit all citizens of this state include enforcement of health, safety and consumer regulations; educational outreach programs and protection of the rights of the elderly and disabled.”

In laymen’s terms, this translates into ‘standing up for the little guy.’ There are numerous examples of state AGs helping consumers in the area of health – these include fighting big tobacco, protecting consumers through better drug labeling and combating chronic illness by supporting a tax on some sugar-sweetened beverages.

Yet that role seems lost, as AGs across 20 states have politically aligned themselves against a Democratic administration. This group of AGs is using a joint lawsuit to voice their opposition to an Affordable Care Act (ACA) provision labeled the individual mandate, or the requirement that all citizens hold health insurance. The AGs maintain they have a responsibility to protect regular people from being forced into a health care marketplace. A healthcare marketplace, by the way, that we are all already members of by way of an undisputed federal law entitled, the Emergency Medical Treatment and Labor Act (EMTALA) – the right to receive health care regardless of insurance status at your local emergency room.

Meanwhile, we have witnessed an unprecedented power shift during the 2010 mid-term elections that flipped state party majorities and rescinded a solid Democratic federal majority. Many AGs lost their seats to more conservative candidates. Thirty AG offices were up for election and the new AG make-up is 24 Republican, 25 Democrat, and one Independent. The party affiliation of AGs changed to Republican in 5 states, placing many at risk of new lawsuits aimed at overturning the ACA.

Yet amid this gloomy forecast, it is worth reflecting on and recounting the positive dimensions of the AG office and an AG’s tremendous opportunity to protect and serve the best interests of American consumers.

In September, Lainie Rutkow and Stephen Teret published a paper in the Journal of the American Medical Association (JAMA) outlining the role of the state attorney general and the positive impact these officeholders can have on America’s public health. Further, the authors contend the idea that AGs would rally against provisions in ACA that seek to protect the most vulnerable in our country – those without health insurance – is diametrically opposed to their mission and their responsibilities to consumers.

Below are examples of what AGs can do to protect consumers:

Tobacco – Mississippi’s Michael Moore led 40 AGs in successfully suing the tobacco industry to recoup expenses related to medical treatment through the state Medicaid program. A “master settlement” or grouped settlement for all states was reached in 1998, resulting in $206 billion for states.

Pharmaceuticals – A host of national partners including the federal AG and more than half of the state AGs reached a settlement with the pharmaceutical company AstraZeneca in April of this year regarding improper labeling of an anti-psychotic drug. The company will pay $520 million in damages to participating states. The drug is intended for patients with bipolar disorder and schizophrenia; however, as a result of its marketing campaign, the drug was being prescribed to children, adolescents and dementia patients – populations for which FDA approval was not obtained. This demonstrates the powerful role AGs have in protecting consumer’s health and the potential for insuring future health benefits and programming for the public that may result from financial settlements.

Obesity – Just this year, William Sorrell, the AG of Vermont held a summit with health professionals about ways to combat obesity, particularly among children. Sorrell suggests that taxing certain sodas and sweetened drinks could both curb consumption and raise revenue to the tune of $30 million annually. The use of the AG office to protect its citizens from chronic illness represents a creative avenue to positively affect policy.

In the case of the tobacco lawsuit, what made it so successful was a team effort. Attorneys general across states of every color (red, blue and purple) worked together in the interest of public health. This is in stark contrast to the politically motivated legal challenges against health reform. Maybe it’s worth reminding AGs why they were elected?

– Eva Marie Stahl, Policy Consultant

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Florida ruling swings pendulum toward Supreme Court

Friday, October 15th, 2010

Yesterday, the federal judge in Florida, Roger Vinson, allowed the lawsuit against the new health law to go forward. In his ruling, the Judge maintained that there were constitutional issues in play and formal hearings would begin mid-December. Specifically, the Judge discounted the Justice Department’s claim that 1) the individual mandate was a natural extension of the commerce clause – or the federal government’s ability to regulate interstate commerce; and 2) the penalty imposed by the individual mandate was equivalent to a tax.

However, Judge Vinson dismissed several claims made by the plaintiffs – 20 attorneys general, led by the Florida AG, Bill McCollum – including arguments related to state sovereignty. Nevertheless, he sided with the AGs that the use of the commerce clause was unprecedented and deserved a weighing of whether or not that exercise in federal power is constitutional. Vinson also went to great pains to dismiss the Justice Department’s argument that the penalty associated with the individual mandate was simply a tax. Interestingly, he honed in on the political discussions that occurred during the passage of the legislation when many promoting reform argued that the penalty was not a tax. Shouldn’t the semantics of taxation during political theater be irrelevant in the courtroom? I guess not.

As reported by the Volkh Conspiracy here, there is little discussion by Vinson regarding the Necessary and Proper clause – which is the strongest argument for the new health law. Millions of uninsured doesn’t translate into “necessary?” In U.S. District Court in Michigan, however, Judge Steeh maintained that the insurance mandate is constitutional and the overwhelming national crisis supersedes the concerns expressed by health reform foes: “The costs of caring for the uninsured who prove unable to pay are shifted to health care providers, to the insured population in the form of higher premiums, to governments, and to taxpayers… These decisions, viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers and the insured population who ultimately pay for the care provided to those who go without insurance.”

The Florida ruling is important because, alongside the Virginia ruling expected on Monday, it narrows the path for defendants and plaintiffs alike in how they argue the case. Clearly, the commerce clause will be the central constitutional question going forward. Should not purchasing health insurance be viewed as an active choice that may be regulated? We will hear many competing theories in the coming months – which theoretical frame will the Supreme Court choose? How will the pendulum swing? Stay tuned.

– Eva Marie Stahl, Policy Consultant

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MI judge’s ruling swings the pendulum in favor of the individual mandate

Friday, October 8th, 2010

A judge that upholds the legality of the individual mandate does exist! Yesterday, U.S. District Judge George Steeh dismissed the Thomas More Law Center’s central arguments against the Affordable Care Act’s individual mandate and denied a requested injunction that would have stalled health reform implementation. In an effort to dismantle health reform, anti-reform groups are pursuing a legal avenue that would invalidate a central pillar of health reform — the requirement that all Americans purchase health insurance. Despite the federal judge’s ruling in Michigan, however, the individual mandate remains under scrutiny in Florida and Virginia.

Steeh, a Clinton appointee, maintains that Congress did not overstep its authority in requiring individuals to purchase health insurance and doing so is within their power; he cites numerous Supreme Court rulings to support his assertions. Steeh writes: “Because the ‘penalty’ is incidental to these purposes, plaintiffs’ challenge to the constitutionality of the penalty as an improperly apportioned direct tax is without merit.” When translated, this means that Congress may use the individual mandate and associated penalties to achieve the greater goal of insuring all Americans. This is great news for supporters of ACA, mostly because it’s a win for moving health reform implementation forward.

The More Center lawsuit is similarly aligned with the suit brought by the 20 attorneys general nationwide, currently being heard in a Florida U.S. district court. The AG suit is assumed to move forward; Judge Roger Vinson of the Florida US district court hinted in an earlier ruling that some major points would progress to trial in December.

The Michigan ruling illustrates the pendulum on which the individual mandate resides. For the citizenry there is little to do but watch it swing. It is likely that the Supreme Court will be the only hand that can stop it.

– Eva Marie Stahl, Policy Consultant

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Florida’s McCollum gets his day in court

Wednesday, September 15th, 2010

Despite taking a beating in the Florida Republican primary for Governor, Attorney General Bob McCollum(R) continues to pursue a legal strategy against the federal government. Hopeful that the nationwide legal strategy against health reform would win him the gubernatorial race, McCollum is now left with simply a legal strategy. But alas, he’s not giving up! Yesterday, Judge Roger Vinson held a hearing on the AG lawsuit in federal court in Pensacola. Vinson, a Ronald Reagan appointee, signaled to his audience that he intended to allow pieces of the legal argument to progress to the next phase. The judge stated that his decision regarding dismissal would be issued no later than October 14th and oral arguments would begin on December 16th.

For those closely watching this lawsuit, this is not a surprising outcome. If you take stock of the situation, it shapes up as more of a political tantrum than a legal travesty. The plaintiffs are 16 Attorneys General (all Republican save Louisiana) and 4 Republican Governors. They appear to be part of a larger Republican strategy to attack health reform at all fronts and at all costs — this is evident in the Johanns (R-NE) amendment that failed this week, an attempt to gut funding for the prevention fund, a cornerstone of health reform. Tactically, McCollum chose well — beginning the hearings in Pensacola and progressing to a conservative bench in Atlanta — both clearly afford the anti-reform AG posse an advantage. Despite the drama of the court proceedings, the legal confrontation should not be brushed off as fodder. Most likely, according to wonks and legal scholars, the lawsuit will land squarely in the laps of the Supreme Court justices. From there, the outcome is not entirely certain.

It is important to remember, however, that the central arguments espoused by McCollum et al. are weak and disingenuous. They boil down to two main issues: is insurance synonymous with commerce AND is a Medicaid expansion the same as coercion? If you want a legal summary, read here.

First, those wishing to dismantle health reform want voters to believe that they are forced to participate in the business of health care by the federal government — demanding they engage in commerce, stripping citizens of their individual liberty. Second, the AGs want voters to believe that the states themselves are victims of too much federal power, coercing states to participate in the public insurance program, Medicaid. Hoping to ride on the tails of a disenchanted electorate, the AGs are touting their steps to the Supreme Court as ‘wins’ against big government.

The arguments against health care reform, however, lack logic. First — for a party that is constantly demanding ‘pay fors’ — they should be in lock step with policy that provides a payment mechanism for health care that all people use and need, regardless of insurance status. The government is not forcing engagement in commerce; it is simply finding a payment mechanism for commerce that already exists. Second, the very idea that the federal government is coercing states to participate in Medicaid is preposterous. States may choose not to participate in the program; in fact, the leading Republican think tank, the Heritage Foundation, encourages states to do so — reminding them, yes, a state may choose to opt out of the program.

This anti-reform posse must be challenged both in court and on ‘main street.’ Advocates are powerful tools in defusing the legal strategy of the far right through educating the public about why health reform is a necessary good. As the Democratic candidate, State Sen. Dan Gelber, running to replace McCollum states, “There are four million people without health care in our state… everybody agrees this was not the most perfect bill that’s ever passed. But I am not going to take the resources of this office that are so desperately needed to solve some of the pressing security issues of our state and dedicate them to what I think ultimately really was a politically motivated lawsuit that was spawned out of a primary battle and that, ultimately, I don’t think has a whole lot of merit when it gets to the Supreme Court, which I think it will…But I do think if you don’t like the bill, Miss Bondi [Pam Bondi (R-FL) AG candidate] should run for the Congress, where she can, as a legislator, fix it in the next legislative session.”

Florida has over 4 million uninsured people – how many does your state have?

– Eva Marie Stahl, Policy Consultant

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