Broad challenges to health law (FURTHER UPDATED)
on Sep 28, 2011 at 11:13 am
FURTHER UPDATE 3:30 p.m.  The Justice Department has announced that it will be filing later Wednesday afternoon its own petition challenging the Eleventh Circuit decision. The blog will discuss that in a separate post, after it is filed.
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UPDATE 12;25 p.m. A group of 26 states also filed a new petition Wednesday, challenging parts of the Eleventh Circuit ruling. The document can be found here.  In addition to raising issues about the insurance mandate and the validity of the entire law, the states are specifically challenging the new law’s conditions on states’ access to federal Medicaid funds, claiming that that is a form of unconstitutional coercion of the states. The petition also asserts that the Eleventh Circuit case is the key one the Justices should decide. It was filed by former U.S. Solicitor General Paul D. Clement, now a Washington lawyer.
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A business trade group and two individuals asked the Supreme Court on Wednesday to strike down the entire new federal health care law, arguing that its key feature — the insurance-purchase mandate — is unconstitutional, and that the rest of the law cannot stand without it. This is the first case to reach the Court seeking review of the Eleventh Circuit Court’s ruling last month against the mandate, but upholding the remainder of the Affordable Care Act.  The petition in National Federation of Independent Business, et al., v. Sebelius, et al., has been docketed as 11-393.
The Obama Administration and several states are also expected to ask the Court to review the Circuit Court decision (see the update at the head of this post).  Later on Wednesday, however, the Administration is due to file another highly significant health care document: its response to a petition already pending at the Court, from the Sixth Circuit Court, and at that time may inform the Court of the strategy the federal government hopes to follow in the various health care cases.  Besides the Sixth and Eleventh Circuits, the Fourth Circuit also has ruled on challenges to the Act.
The stepped-up pace of filings in the Court bolsters the prospects that the constitutionality of the new law will be reviewed by the Justices in the Term that opens formally next Monday.  Cases filed at this time or early in the new Term could be ready for decision before the Justices recess for the summer late next June — if the Court chooses. That would mean, of course, that health care — already sure to be a dominant issue in the 2012 presidential and congressional election campaigns — would become an issue that had drawn in all three branches of the government, adding to its complexity and perhaps to its intensity.
Review is not guaranteed, of course, because none of the cases now developing is subject to mandatory review by the Justices.  But the results that have emerged so far in three federal appellate rulings are so mixed, and conflicting, that the Court may feel the need to step in to resolve the constitutional controversy — especially since the law at issue is such a major piece of congressional legislation. Moreover, the fact that a crucial part of the legislation has been found unconstitutional by one of the appeals courts goes far, by itself, to assure Supreme Court review. The federal government, in fact, will be making that very argument when it files its own expected petition within coming weeks, to challenge the Eleventh Circuit ruling that Congress lacked the power to enact the insurance mandate — a provision that would require virtually every American to obtain health insurance by the year 2014.
The new law, signed by President Obama in March of last year, has more than 1,000 pages and is highly complex, but much of the controversy over it focuses on the insurance mandate. Under that provision, those without health insurance three years from now will be required (with a few exceptions) to pay a penalty along with their federal tax return. The Eleventh Circuit, in its split decision on August 12, ruled that such a mandate was beyond Congress’s power under the Constitution’s Commerce Clause. That part of its ruling agreed with a decision earlier by a federal District judge in Florida. But, unlike that judge, the Circuit Court found that the remainder of the federal law could be enforced even without the insurance and penalty clauses.
That is what is called, technically, the “severability” issue. Under that legal concept, if a part of a federal law is invalid, the rest of the law need not fall with the demise of that provision, if it is clear that Congress would have wanted the law even if it did not include the flawed provision — in other words, can the rest of the law survive by being severed from its invalid provisions?
The National Federation petition put the question it wants the Court to answer this way: “Whether the ACA must be invalidated in its entirety because it is non-severable from the individual mandate that exceeds Congress’ limited and enumerated powers under the Constitution.”
With two petitions now at the Court (the appeal in the Sixth Circuit case is Thomas More Law Center, et al., v. Obama, et al., docket 11-117), and with more on the way, the Justices’ first task will be to decide which — if any — of the petitions they would accept for review.  Depending upon when other petitions arrived at the Court, the Justices may well have the option of choosing among four or more, and they have the authority to grant any one, all of them, or, indeed, none of them. Exactly how they will choose is not a matter of public knowledge, but it is likely that the Court would prefer a case that would present the constitutional issues clearly and directly, in petitions that would be argued by lawyers seasoned in Supreme Court practice.
In the petition that arrived at the Court Wednesday, filed by veteran Supreme Court advocate Michael A. Carvin, a Washington, D.C., attorney (and also signed by one of the mandate’s severest academic critics, Georgetown law professor Randy M Barnett), the lawyers argued that “this case is the best vehicle for definitively resolving the validity of the entire ACA.” The Sixth Circuit ruling in the Thomas More case, the document added, “is a poor vehicle. Most importantly, the plaintiffs there do not have undisputed standing to challenge the mandate. Nor have they even challenged the remainder of the ACA.”
The petition also argued against review at this juncture of the Fourth Circuit Court’s ruling September 8 in a case that has not yet been appealed to the Supreme Court (Liberty University v. Geithner), noting that the decision in that case did not decide the merits of the constitutional challenge. The Fourth Circuit threw out the case on the theory that the mandate and penalty amount to a kind of federal tax, which cannot be challenged, under federal law, until after someone has actually been subjected to the penalty.  If the Justices are interested in that issue, the petition said, it can be considered “just as easily” in the Eleventh Circuit case as in an appeal from the Fourth Circuit decision.
In addition, the petition made a strong pitch for the Court to step in now to decide not only the constitutionality of the insurance mandate, but also the validity of the entire ACA. It noted that the federal government is expected to file its own challenge to the Eleventh Circuit decision against the mandate, so “this Court’s review of the mandate is now virtually inescapable.”
It also contended that “harmful uncertainty currently pervades the Nation concerning the fate of the entire ACA in light of the mandate’s potential unconstitutionality.”
A failure to decide that ultimate issue, according to the petition, would have the practical effect of “dragging out the national uncertainty until at least early 2013.”
