On Monday, November 14, 2011, the U.S. Supreme Court issued an Order agreeing to review and decide the litigation challenging the constitutionality of the health care law, the Patient Protection & Affordable Care Act, that was passed by Congress and signed by President Obama in 2010.
In its Order, the Supreme Court granted petitions for review filed with the High Court by both the U.S. Government and by the plaintiffs, National Federation of Independent Business and 26 states, after a decision issued by the U.S. 11th Circuit Court of Appeals in Atlanta in August 2012.
The 11th Circuit was the only U.S. Appeals Court that ruled the individual insurance mandate in the health care law unconstitutional, out of four federal Circuit Courts of Appeals that heard appeals of litigation challenging the law.
The Supreme Court will hear oral arguments in the matter in March 2012, and is expected to issue its decision by July, 2012, before the 2012 Presidential and Congressional elections.
Issues Before the Supreme Court
In granting the petitions for review, the Supreme Court agreed to hear arguments on four issues presented by the litigation:
- Constitutionality of Individual Insurance Mandate. Whether the individual insurance mandate in the Patient Protection & Affordable Care Act is constitutional, or whether it exceeds the authority given to Congress to regulate interstate commerce under the Commerce Clause of the U.S. Constitution. (Plaintiffs in all of the cases challenging the law have argued that the law’s requirement that all individuals purchase health insurance by 2014 exceeds Congress’ powers under the Commerce Clause of the U.S. Constitution.)
- Severability of the Individual Insurance Mandate. Whether the individual insurance mandate is severable from the remainder of the law, so that the remainder of the Patient Protection & Affordable Care Act could stand on its own and remain in effect if the individual insurance mandate were to be struck down as unconstitutional.
- Procedural Question: Does the Court Have Jurisdiction to Decide the Matter Before 2014? Whether federal courts (including the Supreme Court) have power to hear and decide the challenges to the individual insurance mandate at this time, or whether the federal Anti-Injunction Act, 26 U.S.C. §7421(a) (which prohibits court challenges to taxes before they go into effect) bars the courts from hearing and deciding these challenges to the insurance mandate until it goes into effect in 2014.
- Constitutionality of Medicaid Expansion. Whether the expansion of Medicaid coverage for low-income individuals, which was mandated under the Affordable Care Act as a condition to states’ eligibility to receive federal Medicaid dollars which were increased under the law, exceeded Congress’ powers under the spending clause of the U.S. Constitution. (This was a claim made by the 26 states, and the Eleventh Circuit Court of Appeals ruled against them, upholding the constitutionality of the Medicaid expansion.)
In its Order, the Supreme Court allotted two hours for oral argument on issue no. 1 above, one and one-half hour on issue no. 2 above, and one hour on issue no. 3 — totaling four and one-half hours of oral argument. A spokesman for the Supreme Court told Reuters that oral arguments will take place in March 2012, and apparently also said that the Court had scheduled five and one-half hours for oral arguments, even though the Court’s Order mentions only four and one-half hours allotted for arguments.
The Supreme Court’s Order granting Certiorari (review), which can be found on the Court’s website, is short, as customary.
The cases in which the Court has granted the Petitions for Certiorari (review) are: Dept. of Health and Human Services v. Florida (11-398); NFIB v. Sebelius (11-393); and Florida v. HHS (11-400). These are the petitions for review filed by the U.S. Government and by the other parties in the litigation decided by the Eleventh Circuit Court of Appeals in August 2011.
The Litigation History and Eleventh Circuit Record Now Before the Supreme Court
On August 12, 2011, a three-judge panel of the 11th Circuit Court of Appeal in Atlanta 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.
In the Eleventh Circuit litigation, the parties petitioned the Supreme Court to hear and decide a range of issues:
- The U.S. Government asked the Supreme Court to hear and decide issues no. 1 and 3 listed above;
- The plaintiff National Federation of Independent Business in that litigation asked the Supreme Court to hear and decide issue no. 2 (severability); and
- The plaintiffs, 26 states who challenged the health care law, asked the Court to hear and decide issue no. 1 above, and also to hear and decide issue 4 (the constitutionality of the Affordable Care Act’s expansion of Medicaid as a condition to states’ eligibility to receive federal Medicaid dollars which were increased under the law – an issue on which the Eleventh Circuit ruled against the stated, upholding the Medicaid Expansion as within Congress’ spending powers). The 26 states also asked the Court to review their challenge to the constitutionality of the law’s employer mandate (requiring that large employers provide certain minimum health care coverage for their employees), which the 26 states claimed would violate State Sovereignty if applied to state-provided health care for state employees.
In its Order, the Supreme Court has granted review only of the four issues listed at the beginning of this article above. It did not grant the 26 states’ requests for review of their challenge to the large employer mandate in the law, on which the Eleventh Circuit decided against the 26 states, upholding the health care law.
The Court’s Order also did not grant review of the Petition for Certiorari (review) filed by Plaintiff Thomas Moore Law Center and four individual plaintiffs in the Sixth Circuit litigation.
In that litigation, the Sixth Circuit Court of Appeals upheld the individual insurance mandate as constitutional within Congress’ broad powers to regulate interstate commerce under the Commerce Clause of the U.S. Constitution. The plaintiffs in the Sixth Circuit litigation had petitioned the Supreme Court to hear and decide this issue — the same as issue 1 listed above, which the Court did agree to hear on the petitions filed in the Eleventh Circuit litigation.
This means that the lower court record and decision before the Supreme Court, on which it will decide this case, are those of the Eleventh Circuit litigation. The Eleventh Circuit was the only Federal Circuit Court to strike down the individual mandate as unconstitutional. But, that Court issued a lengthy opinion analyzing in detail all of the provisions of the Patient Protection & Affordable Care Act, found all of them to be independent and severable from the individual insurance mandate, and upheld all of the provisions of the Act other than the individual insurance mandate.
Reaction to the Court’s Order granting review, which was broadly expected, has been predictably partisan.
“We know the Affordable Care Act is constitutional and are confident the Supreme Court will agree,” said White House Communications Director Dan Pfeiffer in a news release issued after the court made its announcement.
Karen Harned of the National Federation of Independent Business, a plaintiff in the litigation, told Reuters: “We are confident in the strength of our case and hopeful that we will ultimately prevail. Our nation’s job-creators depend on a decision being reached before the harmful effects of this new law become irreversible.”
Some commentators and legal experts have said that they expect the case to be decided by moderate conservative Justice Anthony Kennedy, who appears to hold a swing vote on the Supreme Court, given that the nine-member Court is composed of five conservative Justices appointed by Republican Presidents and four liberal Justices appointed by Democratic Presidents.
On the four issues the Supreme Court agreed to hear, obviously there could be at lease four possible outcomes. The Supreme Court could:
- Uphold the constitutionality of the individual insurance mandate, the Medicaid expansion, and the entirety of the health reform law;
- Strike down the individual insurance mandate as unconstitutional, but uphold the Medicaid expansion and leave in place the remainder (or most) of the other provisions of the health reform law, finding them severable from the insurance mandate, as the Eleventh Circuit ruled;
- Strike down the individual insurance mandate, and invalidate the entire law, finding that the remainder of the law cannot be severed from the insurance mandate; or
- Decide and dismiss the case against the individual insurance mandate on procedural and jurisdictional grounds, finding that the Court does not have jurisdiction to decide that matter under the federal Anti-Injunction Act, 26 U.S.C. §7421(a) (issue no. 3 above), until after the individual insurance mandate has taken effect in 2014, and either uphold or strike the Medicaid expansion under the law at this time.
In any event the Supreme Court’s actions are sure to be closely watched, and its decisions could have political ramifications, with a decision in the matter possible as early as late June or July, 2012, in the midst of the 2012 national Presidential and Congressional Elections.
See other HelpingYouCare™ reports on the litigation challenging the constitutionality of the Affordable Care Act:
- News on Health Care Reform
- Editorials: What Needs Improvement, With Your Comments
- Advocacy: Proposals for Reform, With Your Comments
- Legislation: Pending & Recently Adopted
- International Health Care Compare: Information on Health Care & Long-Term Care Solutions in Other Countries
Editor’s Note: The author of this article, Constance R. Barnhart, is a practicing attorney at Barnhart Law PLC, who has 30 years of experience practicing at large law firms. She is admitted to practice law in New York, Florida, Texas and Minnesota.
Copyright © 2011 Care-Help LLC, publisher of HelpingYouCare™.