FURTHER UPDATE 10:20 p.m .   Twenty-six states challenging the new health care law, moving rapidly as the Obama Administration has to advance Supreme Court review of the constitutional controversy, have now filed their formal response to the government appeal, supporting review of all the key issues at stake.   The states filed 11 days earlier than they needed to do.   In an 18-page brief, filed Monday and now available, the states argued that the Court should focus on the cases from the Eleventh Circuit Court.   It supported review of the government’s petition in 11-398, and urged that the states’ own case (11-400) be reviewed to assure that the Court addresses whether any of the law can stand if the new insurance-purchase mandate is struck down, as the states urge.   The states’ challenge, the brief added, also can set the stage for the Court to decide the constitutional issue over the mandate even if the federal Anti-Injunction Act is found to bar some challenges.  It is not clear, the states said, that the Act’s bar applies at all to states.  With the filing of this document, the Eleventh Circuit cases are now eligible for referral to the Justices themselves within ten days, if the Court opts to move rapidly.

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UPDATE 6:50 p.m.   Continuing to file early its responses to health care appeals, the Obama Administration late Tuesday afternoon submitted its brief in the Liberty University case (11-438), and urged the Justices to hold that case until after it rules in other cases.  As an alternative, it said the Court may wish to grant review, but solely on the question of whether all challenges to the insurance mandate are barred by the federal Anti-Injunction Act.   The government’s response in that case was not due until Nov. 10, so the filing arrived more than three weeks early — putting a bright new emphasis on the government’s desire for a prompt decision by the Justices on key facets of the constitutional controversy.

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The Obama Administration, filing early its reply to two of the new cases challenging the federal health care law, urged the Supreme Court to keep its review confined to the constitutionality of the new insurance-purchase mandate, along with the separate issue of how much of the massive law can survive if that provision is nullified.  The 33-page brief, filed as much as two weeks early, added further to the likelihood that the Court could act in ample time to review the constitutional controversy in its current Term. The government document actually was formally filed late Monday, but became available only today.

The “consolidated brief” was a response to two petitions: one filed by 26 states in what has been the most sweeping challenge to the new law (docket 11-400), and one filed by a business trade group, the National Federation of Independent Business (docket 11-393).  The response in the first was not due until Oct. 31, and in the second was due Oct. 28.  Of course, the Administration repeated its plea that the Court also hear the government’s own appeal (docket 11-398).  The government has yet to take a formal position on two other pending cases (docket 11-420, an appeal by the state of Virginia on its right to challenge the insurance mandate, and 11-438, an appeal by Liberty University challenging a lower court ruling that all challenges to the new mandate are barred by the federal Anti-injunction Act).  The government has argued that it is not necessary for the Court to review the sixth pending case (docket 11-117), but it does not actually oppose review, either.

It had appeared, as recently as last week, that if the usual schedule of filings in the six new health care cases had played out in full, the Justices might not be in a position to consider whether to grant some or all of the cases until sometime in early December.   With the speedy filing on Monday of the government’s new response, the chances that the Court could consider some of the cases well before then have increased.

Although the business federation had raised only the question of whether the entire new law should fall, if the insurance-purchase mandate is struck down (the “severability” question), the states in their appeal had sought to raise two other issues in addition to severability.  The other two were a challenge to the new expansion of Medicaid benefits, which the states argued was coercive on the states and thus intruded on their sovereignty, and a challenge to a provision that would impose an added tax on states as employers if they did not offer adequate health care coverage to their full-time employees.

The Administration brief urged the Court to grant review of both of the petitions, but deny review of the states’ Medicaid and states-as-employers challenges.   The Medicaid challenge, the government brief asserted, is based on a theory of coercion that lower courts simply have not accepted.  The new Medicaid expansion is clearly based upon Congress’s authority to add conditions to the receipt of federal funds, the brief argued.   The states’ complaint regarding the new requirements on them as employers, the government said, was an attempt to challenge a form of tax before it took effect — the kind of challenge that is barred by the federal Anti-Injunction Act.

At issue in those two cases, as well as in the government’s own petition for review, is a decision by the Eleventh Circuit Court.  That court found that Congress had no constitutional authority to enact the requirement that virtually every adult American obtain health insurance by the year 2014.   That court also ruled that, even without that provision in the law, much of it could legally remain in effect.  It thus disagreed with a federal District judge in Florida, who had ruled that the insurance mandate was so critical to the entire law that none of the statute could survive without it.

The Administration took issue with the Circuit Court on one aspect of its ruling on “severability.”   It said that two provisions of the law that the Circuit Court had said could survive could not, in fact, remain if the mandate were struck down.  One of those is the so-called “guaranteed-issue provision” — a clause that bars health insurance companies from refusing coverage because of a patient’s preexisting medical condition.  The other is the so-called “community-rating provision” — forbidding health insurance companies from charging higher premiums based on a person’s prior medical history.

Without the insurance-purchase mandate, the government argued, those two provisions “would not advance Congress’s  efforts to make affordable coverage widely available.  Indeed, Congress’s findings  expressly recognized the integral relationship between those provisions.”

If the 26 states were to move quickly to file their response to the government’s petition in 11-398, the Court’s clerk could distribute four petitions to the Justices for their initial consideration soon, perhaps as early as the Conference set for November 10, but perhaps it would be more likely to go to Conference on November 22.   Under the Court’s rules, a petition can be passed out among the Justices within ten days after the first response brief comes in in a case.  One of the pending cases, Thomas More Law Center v. Obama (11-117), is all ready for distribution to the Court at any time.  The Florida and NFIB cases could be distributed as early as ten days from now, thus leaving open — for the cases from the Eleventh Circuit — only the government’s petition in that case, which awaits the state’s brief in opposition.

The two other cases more recently filed — Virginia’s in 11-420 and Liberty University’s in 11-438 — both involve rulings by the Fourth Circuit Court.  That court found that Virginia had no right even to sue to challenge the new law’s insurance mandate, because it could not show that it would suffer any injury from that provision.  That Circuit Court ruled that none of the challenges to the insurance mandate could go forward because they were, in fact, attempts to challenge a federal tax provision before it had taken effect; the Anti-Injunction Act bars such pre-enforcement challenges to federal taxes.  The response in the Virginia case is now due on Nov. 3 and in the Liberty University petition on Nov. 10.

The Obama Administration has, by implication, suggested that the Court need not await the filing of all documents in the Fourth Circuit cases, since it has urged the Court — in granting review of any of the cases — to order lawyers to argue whether the Anti-Injunction Act bars all challenges to the insurance mandate.   The government has steadily opposed Virginia’s right to bring a challenge to that provision, and is likely to do so again in its response to Virginia in the Supreme Court.

 

 

Posted in Cases in the Pipeline, Featured, Health Care

Recommended Citation: Lyle Denniston, U.S., states push for health care review (FURTHER UPDATED), SCOTUSblog (Oct. 18, 2011, 5:21 PM), http://www.scotusblog.com/2011/10/u-s-spells-out-health-care-review-aim/