Monday, August 24, 2015

Obamacare Round 4? Round 5?

The Patient Protection and Affordable Care Act has come before the Supreme Court on three occasions for full briefing and argument. As we begin the run-up to the October 2015 Term of the Supreme Court, it is worth noting and watching for the possibility that the Court may take on at least two additional categories of cases involving Obamacare. Based on petitions already filed, or that will likely be filed near the beginning of the Court's next Term, the Court may have to confront further arguments for religious exemptions from Obamacare's contraceptives mandate, and may have to decide how a clause of the Constitution that requires tax legislation to be offered first in the House of Representatives plays into the Capitol Hill hi-jinx that preceded enactment of the law.

In Round One, in the case called National Federation of Independent Businesses v. Sebellius, Chief Justice Roberts, writing for a 5-4 majority, held that the "Shared Responsibility Payment" imposed on individuals that chose not to comply with the Individual Mandate to purchase health insurance was a tax. The decision conflicted with the claims and arguments of the Democrats who enacted Obamacare. While Roberts and the majority found the Shared Responsibility Payment to be a tax permissibly imposed by Congress, rather than a penalty.

In Round Two, in the case called Burwell v. Hobby Lobby, Justice Samuel Alito, writing for a 5-4 majority, held that small corporations could claim an accommodation under Obamacare from requirements of Obamacare that would have resulted in the corporation providing abortifacient contraceptive coverage as part of employer-provided health insurance. The accommodation protecting the corporations was required by another federal statute, the Religious Freedom Restoration Act ("RFRA"). RFRA imposes on the federal government an obligation to use the most narrowly crafted means of serving even compelling government purposes when the government's regulation limit or interfere with the free exercise of religion. The corporations, including Hobby Lobby, satisfied the Supreme Court that the obligation to fund abortion-inducing contraceptives violated their religious faith.

In Round Three, in King v. Burwell, writing for a 6-3 majority, Chief Justice Roberts rejected the obvious and plain meaning of a provision of Obamacare that provided federal tax subsidies to cover the cost individuals subscribing to health insurance through health insurance exchanges "established by the State[s.]" The IRS and the Obama administration had enacted rules by which individuals buying insurance through federally operated exchanges in the 34 States that refused to establish exchanges would still qualify for the tax subsidies to cover the costs of premiums. Roberts rejected the actual meaning of the plain words of the statute, essentially on the ground that, had the Court held Congress and the administration to the text of the statute, the purpose of Congress in adopting Obamacare would be frustrated by the resulting failure of the entire program.

Perhaps, though, the Court has had enough of Obamacare.

Perhaps the Court needs a break from the rancorous debate and the heat. Justice Scalia certainly did not pull any punches when he remarked the statute had been rescued enough times by the Court that it should now be known as SCOTUS-care, a result he concluded was obtained by a tortured process of "interpretative jiggery-pokery."

We should know, perhaps sometime in early October, or shortly thereafter, whether the Court will again revisit the crown jewel of the Obama crown. By then, the Justices will have had the opportunity to look at petitions involving another round of disputes over the Obama administration's efforts to force employers to fund health insurance coverage for services against which they maintain a religiously based, conscientious scruple. In addition, shortly after the Court resumes its work, another constitutional challenge, a systemic attack on the entire Act, will be presented to it, in a petition filed by the Pacific Legal Foundation.

In a series of cases involving religiously affiliated colleges and universities, the Supreme Court may have the opportunity to further refine its thinking on whether the federal government violated rights of religious freedom when it imposes obligations on private parties, in this case, Catholic and Baptist affiliated schools and colleges, to provide coverage for contraceptive services against which they hold a religious scruple of conscience. The first Obamacare contraceptives case involved, as noted above, small, closely held corporations. These cases, if the Court takes one or more of them for decision, involved religiously affiliated institutions of higher education but not religious societies as such.

In another case, about which I posted a series of blog entries a year ago, the Court will be asked to consider whether the entire Obamacare statutory framework was enacted in violation of a provision of the Constitution known as the Origination Clause. Under the Origination Clause, all bills that raise revenue must originate in the House of Representatives, although the Senate is permitted to offer amendments to such bills.

As I explained in the previous post introducing the Sissel case:
Litigation raising the Origination Clause argument against Obamacare has been pending in the Nation’s Capitol for some time now.  Matt Sissel, the plaintiff, claimed that, because the penalty for failing to purchase health insurance is a tax, the Origination Clause required that the House of Representatives originate the legislation. Obamacare, however, was an invention of the Senate.
In fact, the Democrat-controlled Senate took a pending House bill – one regarding tax credits for home ownership by members of the military -- stripped out every jot and every tittle of it including its title, and inserted the Affordable Care Act in place of its original text and title.  This, on Capitol Hill, is called an amendment in the nature of a substitute.
A decision on the Sissel case out of the US Court of Appeals in Washington, DC, on Friday, August 7, may provide the set-up for the Origination Clause challenge to Obamacare to be considered at the Supreme Court.

In a strange twist, as the most recent development in Sissel case, Democrat appointed appellate judges all rejected Matt Sissel's claim that Obamacare was a tax and therefore unconstitutional because it originated in the Senate. Republican appointed judges on the same court rejected the majority's view that Obamacare was not a bill for raising revenue. Nonetheless, they agreed with the outcome of the case because, while, in their view Obamacare, which will raise some 490 billion dollars in revenue for the general fund of the United States, was clearly a bill for raising revenue, the bill that became Obamacare actually did originate in the House.

Of course, the original legislation that became Obamacare was a proposal to provide relief on home financing to veterans and service personnel. After that bill passed in the House, the Senate took the bill and gutted everything to do with assisting veterans and service members. In place of the veterans' assistance language, the Senate substituted the text that became the health care insurance overhaul legislation. F

The Supreme Court grants review in fewer than 100 cases most years. The number is substantially lower than under Chief Justices that preceded William Rehnquist. Still today, the likelihood that a case will be reviewed is substantially greater where the federal appeals courts are of a divided view on the legal question at issue in the case.

In the contraceptives cases, the division of the Circuit Courts of Appeal make the likelihood of a further decision from the Court substantial. At the same time, the Court has the power to decide cases only on the papers -- without full briefing and argument -- this is what the Court calls summary disposition. The contraception cases require the Court's attention to resolve the division among the Courts of Appeal. The Court could, however, summarily dispose of the cases by invoking its earlier decision in Burwell v. Hobby Lobby. (That summary disposition is not highly likely, but is at least possible.)

In the Origination Clause case, the chances of review are substantially lower. I say that, not because the argument is wrong, or the case unworthy of consideration. It just reflects the reality of a limited resource -- the Court's time and attention -- and the need to accomplish such ends as maintaining a uniform application and understanding of federal law. At this point, the appeals court in Washington, DC, is the only one to have ruled on the Origination Clause. [In Hotze v. Burwell, a case from Texas and decided by the federal appeals court there, a physician offered the same Origination Clause argument as did Sissel. In Hotze's case, however, the Fifth Circuit dismissed the appeal and directed the trial court to dismissed the lawsuit. The appeals court did not decide the Origination Clause argument because the court concluded that Hotze was not a proper party to bring the lawsuit.]

While court watchers may wonder whether the justices wince when requests for review in highly contentious cases keep returning to the Court, Abraham Lincoln explained once that it was the Court's unavoidable duty to decide cases properly before it:
At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.
In like vein, though it might pain them to undertake the process so soon again, the duty of the justices is to decide these cases. It would be nice, however, if, from time to time, they would decide them correctly. Perhaps by next Spring we will have reason to congratulate the Court on doing so.