Posts Tagged ‘Supreme Court’

First Quarter: Supreme Court Ready to Tackle the ACA

Tuesday, November 15th, 2011

The awaited day is here. The Supreme Court announced that it will hear the case against the Affordable Care Act’s (ACA) individual responsibility requirement (and other related requests). For those immersed in football season, this is the Super Bowl of legal challenges.

Game time.
Be prepared, the oral arguments will last five and a half hours. Here’s a breakdown:

  • • The Court will devote two hours to the constitutionality of the individual responsibility requirement
  • • Ninety minutes will address “whether the ACA must be invalidated in its entirety because it is nonseverable from the individual mandate.”
  • • One hour is devoted to whether the Anti-Injunction Act (AIA) prevents a ruling before the individual responsibility requirement goes into effect in 2014.
  • • The final hour will address the constitutionality of the expansion of Medicaid

The Court will hear the case at the end of March 2012, releasing a decision sometime in the summer if not before. The ruling will come at the height of the presidential campaign, ensuring its outcome will affect the election.

What is at stake?
The Court will address three main issues:

Individual responsibility requirement. This is the centerpiece of the legal challenges to the ACA around the country. Anti-ACA supporters take issue with the requirement that most Americans purchase health insurance by 2014, if they can afford it. The Court will consider the constitutionality of the individual responsibility requirement and will subsequently review the severability of the mandate from the rest of the law. In other words, if the individual responsibility requirement fails, can the ACA stand?

Anti-Injunction Act (AIA). The Anti-Injunction Act states that consumers cannot challenge a tax law until they have paid the tax. This issue was raised in the 4th circuit opinion regarding the two Virginia cases. The argument is that jurisdiction to rule on the individual responsibility requirement is precluded by the AIA simply because it has not happened yet! This would lead to all cases against the individual responsibility requirement being thrown out until 2015. If the AIA is upheld, millions of Americans would have health insurance through Exchanges and Medicaid prior to a determination of the constitutionality of the individual responsibility requirement.

Medicaid expansion. Medicaid expansion as a threat to state autonomy was raised initially by the 26 states and National Federation of Independent Business (NFIB) case, originating in Florida. The group maintains that the Federal government is coercing states, essentially forcing them to participate in the Medicaid program. This coercion, the states maintain, is unconstitutional. The Medicaid question has yet to be supported by any lower court; however, analysts believe adding the Medicaid expansion issue has raised the profile of the case.

The decision to address the individual responsibility requirement was expected while the Medicaid expansion was not. However, the Court seems to be giving a nod to the concerns of all participants, agreeing to review the issues presented in the Florida case as well as the AIA, an issue raised in the 4th circuit.

Analysts agree that the main issue at stake remains the constitutionality of the individual responsibility requirement and further, whether or not it may be severed from the law. If the requirement is struck down while the rest of the law is left intact, it will raise a number of policy and political questions going forward. Analysts have explored the consequences of life without the individual responsibility requirement, concluding that the ACA could still function though it would not be as successful at expanding insurance coverage. Insurers, however, would be sure to raise a major outcry over guaranteed issue and community rating provisions if the requirement falls.

Place your bets.
The 26-state and NFIB case (often labeled the Florida case) dominates the spotlight as its arguments regarding the individual responsibility requirement won over 11th circuit Judge Roger Vinson. Vinson ruled against the individual responsibility requirement and threw out the ACA altogether, maintaining that the law was not viable without the requirement.

The Obama Administration, however, is feeling optimistic after having two conservative judges rule in their favor. The first is Judge Jeffrey Sutton of the 6th circuit, a former law clerk for Justice Antonin Scalia. The second is Judge Laurence Silberman of the DC Circuit who eloquently defended the individual responsibility requirement and is cited as a respected conservative.

In the end, the Obama Administration believes that they have a strong case in support of the individual responsibility requirement. Yet if SCOTUS embraces the Anti-Injunction Act, it could delay any decision until 2015. This path offers SCOTUS a way out of the political quagmire that they face in light of the 2012 elections. Yet, maybe not – with an early June decision, four months remain in the campaign season. As one analyst noted, “That’s a very long time in politics, especially for something that won’t have any immediate, tangible effect on people’s lives”

Game on.
Brief filings will begin as early as this December as all sides prepare for their legal Super Bowl. So, bring on the wings and get comfy – this is one of the longest oral hearings on record. We will all be watching for the last minute Hail Mary.

– Eva Marie Stahl, Policy Analyst

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Posted in Affordable Care Act implementation, Medicaid | No Comments »

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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The Insider: ACA Implementation: Partly sunny with a (Supreme) chance of rain

Thursday, October 21st, 2010

This week brought some important developments in ACA implementation. First and foremost is the major win by consumer advocates in the prolonged and multi-pronged struggle to shape NAIC recommendations on Medical Loss Ratios. At the NAIC meeting in Orlando today, consumer advocates beat back attempts by brokers to exclude commissions from the definition of medical expenses, blocked insurers from using high-loss ratios in one state to paper over a failure to meet standards in another, and created a reasonable standard of certainty to establish whether an insurer’s failure to meet the loss ratio was due to under-spending on medical care or unforeseeable random events.

These decisive wins are a case example of the one-two punch that advocates will need in order to influence the numerous federal and state decisions ahead. The consumer victory resulted from the combination of persistent policy advocacy, especially by the NAIC consumer representatives, coupled with a national effort by consumers to reach out to their insurance commissioners and let them know that people were watching (illustrating one of the important axioms of grassroots advocacy: decision makers make different — and better — decisions when they are being watched).

The second key development, while less positive, also contains within it an important strategic dimension. Last week, the Florida District Court issued a decision allowing the case against the individual responsibility clause of the ACA to go forward. Specifically, the Florida court will hear arguments about whether the individual responsibility requirement is legal under the Commerce Clause. The court also will hear arguments about whether the Medicaid expansion under the ACA exceeds Congress’ authority, although Judge Vinson’s decision makes it clear that he considers this argument to be much weaker than the individual responsibility claim. Because Judge Vinson rejected the federal government’s argument that the penalty for not having health insurance constitutes a tax, the focus of the Florida case is squarely on the Commerce Clause argument. Just a week earlier, a District Court in Michigan ruled that the individual responsibility requirement was Constitutional. Whether Florida (and Virginia) ultimately agree with the Michigan ruling, the issue is likely heading for the Supreme Court, which should be enough to give anyone concerned about the sustainability of the ACA a few sleepless nights (especially since the wife of one Justice is actively campaigning for repeal).

But while legal scholars slug it out and try to second guess the next round of rulings, it is important for advocates not to lose sight of the intertwining of the political and legal issues since most advocates will not be able to intervene directly in the legal proceeding.

First, the court cases keep public attention focused on the individual responsibility requirement, which is one of the least popular provisions of the law. The lawsuits also encourage doubt over whether the law will actually be implemented in its current form and potentially give cover for foot-dragging by state administrations inclined to oppose implementation.

The court actions not only affect the political debate, they are also affected by it. The political backdrop against which the Supreme Court makes its final decision is extremely important. To the extent that the law is considered unpopular and there is an active movement for roll back, it will create a context in which a negative legal outcome is considered more palatable.

The key takeaway for supporters of reform is that whether we are looking at how the court cases affect the political debate or how the political debate affects the courts, the response of advocates must be to keep working to create a context of support for the law and expectation that it should and will move forward.

Overall, the events of the past week underscore both the need for and the potential of sustained consumer engagement.

— Michael Miller, Policy Director

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Land Ho!

Monday, March 15th, 2010

After a stormy voyage of more than a year, this Monday morning finds the good ship health reform within sight of a final vote. The tentative timetable has a CBO score out today or tomorrow, Rules Committee action on Wednesday and a vote before the end of the week.

Our understanding is that House leaders are leaning toward a single vote on the Obama fixes that will contain a clause passing the Senate bill passed upon passage of the amendments. That way, House members who are unhappy with the Senate bill will never actually have to vote on it. We do not expect House leadership to wait for all the votes to be locked down before going to the floor, but instead think they will schedule the vote once they are close and try to round up the last few yeses as the debate and vote are happening.

Deconstructing the Opposition Strategy: Be Very Afraid

The Republicans’ strategy at this point boils down to trying to scare the House Democrats into voting no. Their two main lines of attack are:

  1. The Senate won’t pass the fix-it bill, leaving the House stuck with the Senate bill.
  2. It will mean electoral trouble for Democrats in the fall.

Let’s break down each argument:

The first argument has shifted in recent weeks. Originally, the Republicans tried to play on the institutional distrust between House and Senate, suggesting that if House members “took the plunge,” Senate Democrats would leave them high and dry. But as more and more Senate Democrats committed to voting yes on a package of amendments (at least the necessary 50 have done so) the power of this scare tactic has waned, and so Republicans now threaten instead to gum up the works, making passage as hard as possible.

As we observed before, the bill that comes to the Senate will be small and will contain things that are easy to support—e.g. closing the Medicare doughnut hole, increasing federal funding for Medicaid, taking out special deals. Though Republicans certainly might play obstruction games, such parliamentary delay tactics may not play out the way they hope—think of the way Gingrich shutting down government in the 90s backfired with the public.

The second line of attack is that if Congressional Democrats vote yes, it will cost them their jobs. Republicans recently put out a poll from districts of swing members purporting to show that vote for reform would hurt their electoral chances. Whether a coordinated part of the strategy or on their own initiative, two former Democratic pollsters made the same argument in a Washington Post op-ed.

What makes the piece fishy is that a) the only polling they cite is from Rassmussen, a polling company with a well-known “house effect” in favor of conservatives and Republicans  and b) they conclude that what the Democrats should do is essentially pass the House Republican health care proposal (you can compare the GOP proposal to Obama’s plan here).

A more fair reading of the polling:

  • People want major change
  • The main elements of the reform bill are popular, and some are very popular.
  • People don’t know what’s in the bill. As Jon Stewart pointed out (watch at 4:05), there have been not a few misinformation campaigns to take the credit there. But once they learn what’s actually in the bill, they like it a whole lot better.

As the President has become more active in the debate and pushed out a clearer message about what reform does—eliminate insurance company abuses, provide people with security of never losing their coverage, provide tax credits to small business to help them afford insurance—public support has trended up.

Not to say that there aren’t some fundamental glitches in public opinion. Voters think a bipartisan bill is important, and that Democrats should keep working with Republicans until they get it. What the media have failed to convey is that

  1. the bill is supported by Republicans, including governors, former Senate leaders and former administration officials and
  2. the bill is essentially what Republican Senators proposed as an alternative to the Clinton plan in the 90s.

Finally, what should be clear after the Blair House summit is that there is no hope of getting any kind of bipartisan agreement, short of giving up and passing the Republican plan. It would be much more meaningful if pollsters confined their questions to the real choices that are available instead of setting up straw men.

Polls aside, there’s no doubt Democrats are sailing into a stiff headwind right now. The President’s party usually loses seats in the midterm, and this year the persistently high unemployment is fueling voter discontent. Discontent is aimed at incumbents generally, but with a large number of House seats to defend in historically Republican-voting districts, and with incumbent Senate Democrats from conservative states like North Dakota and Indiana retiring, the GOP could see substantial pick-ups. Add in the expected flood of corporate cash into the elections courtesy of the Supreme Court and it is shaping up to be a tough year for Democrats, indeed.

But the fundamental political question persists: are Democrats helped or hurt by failure to pass health reform? They are already on the hook for voting yes and attack ads are already being produced. Flip-flopping is famously unpopular in politics and is unlikely to win a pass from reform opponents in the election. Passing reform gives House Democrats a concrete historic accomplishment with which to fight back.

It don’t come easy: Math in the House
In November, the House health care reform bill passed with  220 votes. Currently with vacancies, 216 are needed to win.  If everyone who voted yes last time votes yes again, reform passes. But House leaders can’t count on every yes vote remaining in place, so every yes-to-no vote must be offset by finding a no-to-yes.

Here are three places where votes are at risk:

Abortion
The number of Democrats willing to ‘vote off’ because of abortion seems to be declining.  A recent letter from pro-life clerics and theologians looked at the abortion provisions in the Senate bill, chapter and verse, and concludes that the bill does not provide federal funding for abortion.  Several members who voted for the Stupak amendment have publicly reached the same conclusion. And although Stupak claimed that he has about 12 members who will stick with him in voting off, his camp seems to be shrinking as the reality that the Senate bill does not allow federal funds for abortion has begun to sink in. Most analysts put the total number of no votes on account of abortion at five or six.

Immigration
The Senate bill bars undocumented immigrants from purchasing health insurance through the new insurance Exchanges even if they use their own money. It also fails to provide equal coverage to legal immigrants, continuing a ban on federal matching funds for state Medicaid coverage and offering instead less comprehensive and more costly coverage in the Exchange. As a result, a number of lawmakers in the Congressional Hispanic Caucus have said that they were leaning toward a no vote.  The issue is further complicated by the fact that the provision relating to undocumented individuals cannot be addressed via budget reconciliation.

But a Medicaid provision that gives states at least the option to cover legal immigrants could be addressed in reconciliation.  While most states would probably not take up the option, the measure could at least provide fiscal relief and perhaps better coverage in those states who now cover legal immigrants with 100 percent of state dollars.

How possible is this? Remember that in the initial House vote in November, there was an 11th hour change on abortion. It’s still possible that House leaders and the President will see the light on Medicaid for immigrants, especially if it is the only remaining obstacle to passage. However, even if this last-minute adjustment is made, the legislation does not go far enough in providing equal access to coverage for immigrants, which only underscores the importance of comprehensive immigration reform (check out this weekend’s march here).

The Scott Brown effect
In the wake of the election of Republican Senator Scott Brown, the Massachusetts delegation has become visibly uneasy about reform. Despite compelling evidence that the Brown election did not turn on the candidates’ positions on health care,  some members of the normally solidly liberal Massachusetts delegation have indicated concern about moving forward, though not all have given the same reasons.  It’s hard to imagine that Massachusetts Democrats would actually sink national health care reform. But as the Brown election proved, nothing can be taken for granted—even in Massachusetts.

Coming soon

Stay tuned for updates this week as the CBO score becomes available and we get more clarity about the vote schedule.

-Michael Miller, director of strategic policy

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