New plea to rule on health mandate
on May 4, 2012 at 2:36 pm
A business trade group and four of its members have made a new plea to the Supreme Court to go ahead and decide the constitutionality of the mandate that virtually all Americans must obtain health insurance by the year 2014 — the most controversial section of the new federal health care law. In a letter filed last month, and available here, the National Federation of Independent Business indicated that the Court — in a mostly unrelated ruling on April 24 — appears to have already given itself permission to go ahead and decide that constitutional question.
The only potential barrier to the Court’s option to rule on the insurance mandate’s validity is an 1867 federal law, the Anti-Injunction Act, that flatly bars any lawsuit that seeks to block the government from collecting tax revenues. The Court is considering whether that bars the challengers’ lawsuit to the mandate, on the theory that that provision is a tax revenue measure that might raise as much as $6 billion a year for the Treasury.
Although both the challengers and the Obama Administration want the Court to decide the mandate’s validity, a Court-appointed Washington lawyer was invited to make the point that the old law is a flat prohibition to the challenges; the amicus has contended that any legal contest of the mandate must wait until it goes into effect and is enforced. The Administration has argued that the old law is jurisdictional in nature, but should not bar review of the issue at stake on the mandate.
Since the Court has not yet issued any ruling on the Affordable Care Act, it still has the option of scuttling the challenges to the mandate by relying on the AIA as a bar to its jurisdiction to do so. And the fact that it is still an open issue apparently convinced the business federation’s lawyers that it would be a good idea to bring to the Justices’ attention — as part of their health care deliberations — the decision last month in the case of Wood v. Milyard.
That ruling, of course, had nothing to do directly with the health care controversy. It was a decision giving federal appeals courts the discretion to decide on their own an argument that one side in a criminal case could have made, but explicitly chose not to do so. If a state has waived such a legal point in response to a convicted criminal’s appeal, the Justices ruled, the appeals court has the authority to consider it on its own and proceed to a decision on the merits at issue.
How does the NFIB’s new letter tie that to the health care debate? It noted that the federal government has made “a deliberate decision not to raise the AIA as a defense” to a ruling on the mandate’s constitutionality. By implication, the letter appeared to suggest, the Court would be free to judge for itself whether the AIA was, indeed, a bar to such a decision and need not treat it as a flat jurisdictional bar to even considering the mandate. And the letter referred to a section of the business federation’s AIA briefing contending that the Court should “accept the Solicitor General’s express concession that the AIA should not bar this suit.”
That brief added: “After all, this is not a case where there has been a mere failure by the government to raise [the AIA] as a defense.” And it pointed to a footnote in the Wood v. Milyard decision spelling out that “a waived claim or defense is one that a party has knowingly and intelligently relinquished.” In addition, it pointed to comments in the Wood opinion that a party with a defense available to it that would bar a court from ruling on the merits of an issue, has a right to give up that defense, and let the merits decision go forward if the court rules that it is free to do so.
The NFIB letter also pointed the Court toward comments in an Obama Administration brief and in a brief by the Court-appointed amicus discussing the waiver issue — references that the NFIB apparently cited to show that the issue had been debated in the briefing, and thus the NFIB was free to bring up a later development bearing upon the question.