U.S. Government Appeals Health Care Law Litigation to Supreme Court

By Constance R. Barnhart, on September 30th, 2011

US Supreme Court On Wednesday, September 28, 2011 the U.S. Department of Justice petitioned the U.S. Supreme Court to review and decide the litigation over the constitutionality of the individual insurance mandate in the Patient Protection & Affordable Care Act, the signature health care reform law signed into law by President Obama in 2010.

This means that if the Supreme Court accepts the petitions for review before it, the Court could hear arguments in the case by Spring of 2012 and could render a decision on the health care law as early as June, 2012, in the midst of the 2012 Presidential election.

Procedural History and Timing of Petitions for Review

The Government’s Petition. The Government is petitioning the Supreme Court for review of the decision issued on August 12, 2011 by a three-judge panel of the 11th Circuit Court of Appeal in Atlanta, which struck down the individual insurance mandate in the health care law as beyond Congress’ constitutional authority under the Commerce Clause of the U.S. Constitution, but upheld the rest of the health care law.

The timing of this action by the Government surprised some political commentators, as the Government had 90 days (until November, 2011) within which either to petition the 11th Circuit Court of Appeals for an en-banc hearing of the case by the entire 11th Circuit Court of Appeals or to appeal to the Supreme Court. Some thought that taking the former route (request for hearing by the entire 11th Circuit Court of Appeals) could have delayed hearing of the case by the Supreme Court until after the Presidential election.

The Justice Department issued a statement on Wednesday, saying: “The Department has consistently and successfully defended this law in several courts of appeals, and only the 11th Circuit Court of Appeals has ruled it unconstitutional. We believe the question is appropriate for review by the Supreme Court.

“Throughout history, there have been similar challenges to other landmark legislation such as the Social Security Act, the Civil Rights Act, and the Voting Rights Act, and all of those challenges failed. We believe the challenges to Affordable Care Act — like the one in the 11th Circuit — will also ultimately fail and that the Supreme Court will uphold the law.”

Although there has been much speculation about the political ramifications that a Supreme Court decision for or against the health reform law would have on the 2012 Presidential election, the Justice Department did not explain the timing of its decision nor comment on its decision except for its statement quoted above.

Petitions for Review Filed with Supreme Court by Other Parties. The 26 States led by Republican officials who are plaintiffs in the 11th Circuit litigation challenging the health reform law, as well as three other plaintiffs (the National Federation of Independent Business and two individuals) also petitioned the Supreme Court on Wednesday, seeking a review of the portions of the 11th Circuit Opinion upholding the entirety of the health reform law other than the individual insurance mandate.

Another petition for review, filed in July by plaintiff Thomas Moore Law Center and several individual plaintiffs in related litigation in the 6th Circuit, is also pending before the Supreme Court. That petition for review seeks to overturn a decision rendered on June 29, 2011 by a three-judge panel of the U.S. 6th Circuit Court of Appeals in Cincinnati, which upheld the individual insurance mandate and the entirety of the health reform law as Constitutional.

Division Among the Federal Circuit Courts of Appeals; Likelihood of Supreme Court Review. As referenced above, the U.S. Federal Circuit Courts of Appeals have divided in their rulings as to the constitutionality of the individual insurance mandate in the health reform law. The 6th Circuit upheld the insurance mandate and the health reform law as Constitutional and within Congress’ power under the Commerce Clause of the U.S. Constitution, while the 11th Circuit struck down the individual insurance mandate as beyond Congress’ power under the Commerce Clause, but upheld the rest of the health care law.

Another U.S. Circuit Court of Appeals – the 4th Circuit in Richmond – dismissed two lawsuits challenging the health care law in a decision issued by a three-judge panel of the 4th Circuit on September 8, 2011. The 4th Circuit, however, declined to rule on the substance of the plaintiffs’ constitutional challenges to the health care law’s insurance mandate in those cases.

In one of those cases (brought Republican Attorney General Ken Cuccinelli on behalf of the State of Virginia), the 4th Circuit held that the plaintiff State of Virginia lacked standing to challenge the health care law in court, and therefore dismissed the case for lack of subject matter jurisdiction.

In the other of those 4th Circuit cases, the plaintiffs had sought to enjoin (stop) enforcement of the penalty that will be imposed by the Affordable Care Act starting in 2014 for failure to comply with the individual insurance mandate, alleging it to be an improper exercise of taxing authority by Congress. The 4th Circuit dismissed that case on the grounds that the claims were barred as premature by a federal statute (the federal tax Anti-Injunction Act (AIA), I.R.C. § 7421(a)) which prohibits any federal court from entertaining a lawsuit seeking to restrain the assessment or collection of any federal tax in advance of its imposition.

It is within the Supreme Court’s discretion whether to accept the petitions for review of the 11th Circuit and 6th Circuit decisions now pending before it, and whether to hear and decide the case. It is widely expected, however, that the Supreme Court will take the case.

Most all of the factors that commonly induce the Supreme Court to accept petitions to review and decide cases are present: a U.S. appeals court has struck down a major federal law, the lower Circuit Courts have reached divided decisions on the law’s constitutionality, and all parties, including the U.S. Government have requested the Supreme Court’s review.

“This court’s review is warranted to resolve the conflict in the circuits,” the U.S. Justice Department wrote in its petition, referring to the division between the 6th Circuit that upheld the law and the 11th Circuit that struck down the individual insurance mandate portion of the law. “Review is especially appropriate because the court of appeals ‘str[uck] down as unconstitutional a central piece of a comprehensive economic regulatory scheme enacted by Congress to address a matter of grave national importance,” the Justice Department wrote.

Questions on which the Parties Have Requested the Supreme Court to Rule

In their respective Petitions for Certiorari (petitions for review) to the U.S. Supreme Court, the parties in the 11th Circuit and 6th Circuit litigation have requested the Supreme Court to rule on the following issues:

The U.S. Government. In the Justice Department’s Petition for Certiorari (petition for review) to the U.S. Supreme Court, it asked the Supreme Court to reverse the 11th Circuit Court of Appeals finding striking the individual insurance mandate of the Affordable Care Act, and uphold the constitutionality of the individual insurance mandate (as well as the entirety of the Act) as within Congress’ power under the Commerce Clause of the U.S. Constitution.

The Government also asked the Supreme Court to address the question of whether the plaintiffs’ challenge to the penalty that will be imposed by the health reform law starting in 2014 on individuals who fail to comply with the individual insurance mandate is barred as premature by the federal tax Anti-Injunction Act (AIA), I.R.C. § 7421(a) — the grounds on which the 4th Circuit Court of Appeals had dismissed the plaintiffs’ claims in one of the cases before that court.

The 26 States Challenging the Health Care Law. In the Petition for Certiorari filed with the U.S. Supreme Court by the 26 States challenging the health care law in the 11th Circuit litigation, the States asked the Supreme Court (i) to strike down the expansion of the federal Medicaid program brought about by the Affordable Care Act, which the 11th Circuit specifically upheld as within Congress’ spending power under the U.S. Constitution, (ii) to strike down the health reform law’s employer mandate (requiring that large employers provide certain minimum health care coverage for their employees), as a violation of State Sovereignty if applied to state-provided health care for state employees, and (iii) to uphold the 11th Circuit’s decision striking down the individual insurance mandate as beyond Congress’ constitutional power under the Commerce Clause of the U.S. Constitution.

National Federation of Independent Business & Two Individual Plaintiffs in the 11th Circuit Litigation. In their Separate Petition for Certiorari to the Supreme Court, the National Federation of Independent Business (NFIB) and Plaintiffs KAJ Ahlburg and Mary Brown, asked the Court to strike down the entirety of the health reform law as unconstitutional, and reverse the portion of the 11th Circuit’s decision upholding the rest of the law and finding that it is separate and severable from the individual health insurance mandate, which the 11th Circuit struck down.

The NFIB and these individual plaintiffs framed the question before the Court as follows: “The question presented is whether the ACA [Affordable Care Act] must be invalidated in its entirety because it is nonseverable from the individual mandate that exceeds Congress’ limited and enumerated powers under the Constitution.”

Thomas Moore Law Center and Four Individual Plaintiffs in the 6th Circuit Litigation. In their Petition for Certiori to the Supreme Court, seeking review of the 6th Circuit Court of Appeals decision that upheld the individual insurance mandate and the entirety of the Affordable Care Act, plaintiffs Thomas Moore Law Center and four individual plaintiffs asked the Supreme Court to reverse the 6th Circuit decision and declare the individual insurance mandate unconstitutional as beyond Congress’ power under the Commerce Clause of the U.S. Constitution.

More Information

See other HelpingYouCare™ reports on the litigation challenging the constitutionality of the Affordable Care Act:

U.S. 4th Circuit Court of Appeals Dismisses Two Lawsuits Challenging Affordable Care Act;

11th Circuit Appeals Panel Strikes Insurance Mandate, Upholds Rest of Health Care Law;

U.S. Sixth Circuit Court of Appeals Upholds Affordable Care Act;

Lawsuits Challenging Health Care Law to Be Argued on Appeal May 10;

Florida Federal Judge Stays His Previous Decision Against Health Care Reform Law;

D.C. Federal Judge Dismisses Lawsuit Challenging Health Care Law — Courts now 3-2 in Favor of Law;

Florida Federal Judge Declares Health-Care Law ‘Void’ in its Entirety – Conflicting Judicial Decisions Now Pending Appeal; and

Central Provision of Health Care Law Is Ruled Unconstitutional.

And, see the HelpingYouCare™ resource pages on VoicesForCare™, including: