Wednesday, November 16, 2011

Supreme Court Will Rule On Health Reform Issues Next Year

On Monday, the U.S. Supreme Court granted certiorari and agreed to consider three of the five health care reform-related petitions it reviewed on November 10. The Court has agreed to hear certain issues in the following cases:

  • Federation of Independent Business, et al., v. Sebelius (No. 11-393);
  • Florida, et al. v. HHS (No. 11-400); and
  • HHS v. Florida, et al. (No. 11-398).

In a press conference on Monday, HHS Secretary Kathleen Sebelius said she welcomes the Supreme Court’s decision to hear the lawsuits challenging the Patient Protection and Affordable Care Act (ACA), saying a quick and favorable ruling could encourage reluctant states to move ahead on implementation. “We will have a decision midway though 2012, which means that states that are sitting, perhaps, on the sidelines saying, ‘We really want to know what happens next’ [with the litigation] will fully engage,” Sebelius said. “We are confident that the law is constitutional, will be upheld as constitutional.”

The National Federation of Independent Business (NFIB) and 26 states had filed a petition asking the Supreme Court to review the ACA. In response to the Supreme Court agreeing to hear the case, Dan Danner, president and chief executive officer of the NFIB, said, “The health care law has not lived up to its promises of reducing costs, allowing citizens to keep their coverage or improving a cumbersome system that has long been a burden to small-business owners and employees, alike. The small-business community can now have hope; their voices are going to be heard in the nation’s highest court.”

Issues To Be Considered
Among the issues the Court will consider are the following:

Individual mandate. The court granted the petition in HHS v. Florida, et al. (No. 11-398) on the constitutionality of the individual mandate.

Severability. The Court also agreed to review whether the individual insurance mandate can be considered separately from the other provisions of the Patient Protection and Affordable Care Act (ACA). This was the only question presented in the National Federation case (No. 11-393) and it was Question 3 of the petition in Florida, et al. v. HHS (No. 11-400).

Anti-Injunction Act. In addition, in HHS v. Florida, et al. (No. 11-398), the Court directed the parties to brief and argue the question of whether the Anti-Injunction Act bars the lawsuit challenging the individual mandate provision. Under the Anti-Injunction Act, “No suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person,” and it was intended to maintain the government’s revenues while a taxpayer objected to paying a tax. Under the Act, the taxpayer must pay the tax first, then pursue a challenge. If the Court were to find that the Anti-Injunction Act applies in the health reform case, challenges would have to wait until after the mandate actually had gone into effect in 2014 and was actually enforced against a taxpayer.

Medicaid expansion. The Court also agreed to review the constitutionality of the Medicaid amendments to expand eligibility and subsidies, which was Question 1 in the Florida, et al. v. HHS (No. 11-400) petition. The appeals court had deemed this Medicaid expansion as constitutional. Under this provision, the federal government would pay 100% of the fees associated with the increase Medicaid eligibility and subsidies beginning in 2014 and 2015, after which the percentage will drop gradually each year until reaching 90% in 2020.

The Court has scheduled five and a half hours of oral debate on these issues during March 2012, and a final decision on the issues can be expected in June.

The Court took no action on the three other pending petitions, which are Thomas More Law Center v. Obama (No. 11-117), Liberty University v. Geithner (No. 11-438), and Virginia v. Sebelius (No. 11-420).


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