New look at health care? (UPDATED)
on Oct 1, 2012 at 9:41 am
UPDATED AND EXPANDED 2:45 pm
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The Supreme Court opened its new Term on Monday by asking the federal government to offer its views on whether the way should be cleared for new constitutional challenges to the federal health care law — including a new protest against the individual mandate that the Court had upheld last June. The request for the government’s views came in response to a rehearing request by a religious-oriented institution, Liberty University in Lynchburg, Va. The university’s earlier petition was simply denied in June, so it asked the Court to reconsider and wipe out a lower court ruling in order to revive the university’s religious challenges to both the individual mandate and the separate insurance coverage mandate for employers. There is also another challenge to the employer mandate, which did not figure in the Court’s decision last Term.
The order came amid a long list of orders on cases that arrived at the Court over the summer. There were no new grants. Among other actions, the Court invited the government to offer its reaction to several new cases.
The U.S. Solicitor General was invited to advise the Court on whether it should hear Arzoumanian v. Munchener Ruckversicherungs, on the insurance claims of victims of the Armenian genocide; three related cases on class-action lawsuits involving securities fraud (dockets 12-79, 12-86 and 12-88), and Young v. Fitzpatrick, a case testing legal immunity for police officers working for an Indian tribe.
The Court summarily affirmed lower court rulings rejecting claims of “packing” of minority voters into new districts to diminish their political strength — a question of racial gerrymandering (Backus v. South Carolina, 11-1404) — as well as claims of partisan gerrymandering in redistricting (Radogno v. Illinois Board of Elections, 11-1127). The Court provided no explanation for its action.
Although the Court’s order dealing with unsettled issues over the constitutionality of the new health care law was significant, because the Court could easily have bypassed the Liberty University plea and usually does just that, and yet it did not, its significance also could be exaggerated. The request for the government’s views is not a guarantee that the Court will say anything really new about the Affordable Care Act, that it would even hint at how the case should come out if returned to a lower court, or that it would issue any order that permits the University to make the challenges that were not ruled upon by the Justices, or even by the lower federal court that heard Liberty’s case — the Fourth Circuit Court in Richmond, Va.
When Liberty’s case was before the Fourth Circuit, that Court ruled that it had no jurisdiction to hear the University’s constitutional objections to the ACA’s mandate that individuals must obtain health insurance by 2014, or pay a penalty. That blunted the University’s claims that the individual mandate is unconstitutional on a variety of grounds: that it was beyond Congress’s power under the Commerce Clause and the Necessary and Proper Clause, and that it violated the rights of the University and its employees to religious freedom and to legal equality. The University also had no chance to make its case against the similar mandate, that larger employers must provide a minimum level of health insurance coverage for their employees, or be penalized.
When the Supreme Court upheld the individual mandate at the end of last Term, it did so under Congress’s power to use a penalty in the form of a tax to enforce an economic choice that Congress had mandated. The Justices’ split decision ruled that Congress lacked the power to impose the individual mandate under the Commerce or Necessary and Proper Clauses. The Court said nothing at all about the similar mandate that applied to the University as an employer, because the Justices had refused to grant review on that question.
Less than a month after the Court had ruled, Liberty’s lawyers filed their motion for a rehearing. What they sought was a withdrawal of the Court’s prior order that simply denied any review of Liberty’s petition (that was one of several petitions that the Court never accepted for review, but disposed of with simple orders after the health care ruling came out). Liberty’s rehearing plea asked that, in place of a simple denial, the Court vacate the Fourth Circuit ruling that it lacked jurisdiction, and remand the case to be reconsidered in the wake of the health care decision.
If the Court agrees to do that, Liberty’s attorneys said, they would renew their claim that the individual mandate was unconstitutional on religious freedom grounds, and that the employer mandate was unconstitutional on all grounds — under the Commerce Clause, the Necessary and Proper Clause, and the Taxing Clause.
Ordinarily, the Court simply denies rehearing pleas with routine orders. The other side in such a situation is not even allowed to react to the rehearing petition unless the Court explicitly asks it to do so. The Court held onto the Liberty rehearing plea over the summer — a period during which it routinely denied a host of other rehearing petitions, without comment. The Justices took up the Liberty plea at their September 24 Conference, resulting in Monday’s order asking the Obama Administration to file a response — within thirty days — with advice on what the Court should do with the Liberty case. While not signaling what the ultimate disposition might be, that was a sufficient break from the normal practice that it carried at least potential significance.
Under the Court’s rules, a party seeking to undo a denial of a petition must show that there have been “intervening circumstances of a substantial or controlling effect” or a substantial argument that had not been made earlier. Liberty told the Court that its decision in the health care case was the changed circumstance, and it thus wished to take advantage of that when the case got back to the Fourth Circuit in Richmond. A rehearing plea must also carry with it a formal statement by attorneys that they are not asking for relief to delay the case, and that they are making the request “in good faith.”
Once the Obama Administration’s Justice Department files the response sought by the Court Monday, the Court will then act. It has the option, of course, of denying the rehearing petition without giving an explanation, especially if it finds no basis for reviving Liberty’s claims. There is no timetable for the Court to act on the petition after the government response has been filed at the end of this month.
