The Supreme Court has issued the briefing schedule for the three health reform cases on the constitutionality of the Patient Protection and Affordable Care Act (ACA).
What’s due and when?
Individual mandate (aka minimum coverage provision)
January 6 – Brief of the Solicitor General (SG) on the minimum coverage provision issue (HHS v. Florida (No. 11-398))
February 6 – Respondents’ briefs
March 7 – SG reply brief
Anti-Injunction Act
January 6 – Brief of the Court-appointed amicus curiae (aka friend of the court) on the Anti-Injunction Act issue (HHS v. Florida (No. 11-398))
February 6 – Briefs of the SG and respondents
February 27 – Reply briefs of the SG and respondents
March 12 – Reply brief of the Court-appointed amicus curiae
Severability
January 6 – Briefs of petitioners on the severability issue (National Federation of Independent Business v. Sebelius (No. 11-393) and Florida v. HHS (No. 11-400))
January 27 – Brief of the SG
February 17 – Brief of the Court-appointed amicus curiae
March 13 – Reply briefs of the SG and petitioners
Medicaid
January 10 — Petitioners’ brief on the Medicaid issue (Florida v. HHS (No. 11-400))
February 10 – Brief of the Solicitor General
March 12 – Reply brief
Showing posts with label PPACA ACA individual mandate. Show all posts
Showing posts with label PPACA ACA individual mandate. Show all posts
Monday, December 19, 2011
Monday, November 7, 2011
What’s so special about November 10?
If November 10 is your birthday, then it’s a special day for you each year. But for those of us keeping an eye on the status of health care reform, November 10 this year is special for another reason.
During a private conference this Thursday, November 10, the U.S. Supreme Court will consider five petitions related to the Patient Protection and Affordable Care Act (ACA) and the Health Care and Education Reconciliation Act of 2010.The petitions to be considered are:
- Thomas More Law Center v. Obama, et al. (No. 11-117),
- National Federation of Independent Business, et al., v. Sebelius (No. 11-393),
- HHS v. Florida, et al. (No.11-398),
- Florida, et al., v. HHS (No. 11-400), and
- Liberty University v. Geithner (No. 11-438).
Lower courts in disagreement. You may recall that the Eleventh Circuit Court of Appeals found that the minimum coverage provision of the ACA is unconstitutional while the Sixth Circuit found the provision to be constitutional. Due to this split of authority in the lower courts, the Supreme Court is expected to decide to review at least one of the cases regarding the provision’s constitutionality. One legal expert, Professor Brad Joondeph, who writes the aca litigation blog, puts the likelihood of the Supreme Court granting review on this issue at 99%. “If there is a constellation of factors that guarantees certiorari, this is it,” according to Joondeph.
(I’m no expert on matters involving the Supreme Court. But I’ll go out on a limb and say the chances of the Supreme Court deciding to review one of the cases are much better than the chances were of the St. Louis Cardinals winning the World Series this year. One Vegas bookie had the odds at 999 to one. Way to go Cards!)
When will we know? The Court could issue an order granting review on the same day of the conference, November 10, or on Monday, November 14, when it issues its regularly scheduled list of orders. (November 11 is another special day, Veterans Day, but because it’s a federal holiday, we won’t hear from the Court on Friday.)
Friday, September 30, 2011
U.S. asks Supreme Court to review Eleventh Circuit health reform case
The Department of Justice (DOJ) has filed a petition for certiorari in HHS v. Florida. You may recall that the Eleventh Circuit ruled on that case in August, finding that the individual mandate (also called the minimum coverage provision) of the Patient Protection and Affordable Care Act (ACA) is unconstitutional.
“The Department has consistently and successfully defended this law in several courts of appeals, and only the 11th Circuit Court of Appeals has ruled it unconstitutional. We believe the question is appropriate for review by the Supreme Court,” according to a statement posted on the DOJ’s website.
“Throughout history, there have been similar challenges to other landmark legislation such as the Social Security Act, the Civil Rights Act, and the Voting Rights Act, and all of those challenges failed. We believe the challenges to Affordable Care Act — like the one in the 11th Circuit — will also ultimately fail and that the Supreme Court will uphold the law,” according to the DOJ statement.
Appellate court ruling. The Eleventh Circuit upheld the district court’s ruling that the mandate exceeded Congress’ power under the Commerce Clause, but reversed the finding that the provision is not severable from the remainder of ACA, thus keeping the law’s other provisions intact. The court also found the individual mandate was enacted as a regulatory penalty, not a revenue-raising tax, and, as such, is outside Congress’ power under the Taxing and Spending Clause.
Questions presented. The question presented in the petition is "[w]hether Congress had the power under Article I of the Constitution to enact the minimum coverage provision."
The DOJ also suggests that the Court direct the parties to address the following question: "[w]hether the suit brought by respondents to challenge the minimum coverage provision of the [ACA] is barred by the Anti-Injunction Act, 26 U.S.C. 7421(a)."
Commerce power. The DOJ argues the minimum coverage provision is a valid exercise of Congress’ Commerce Power because it sets forth a rule that governs how individuals finance their participation in the health care market. This rule targets the main vehicle of such financing -- insurance. The petition indicates that the economic conduct of the uninsured and the resulting cost-shifting have direct and well-documented effects on interstate commerce.
In addition, the DOJ opposes the respondents’ argument that the minimum coverage provision regulates “inactivity.” “No court of appeals has accepted that proposition, which lacks any foundation in the Constitution’s text or this Court’s precedents,” the petition states.
Further, the DOJ argues that the Eleventh Circuit failed to defer to Congress’ policy judgments regarding its objective of reducing cost-shifting. Instead, the court inappropriately applied a “strict scrutiny” level of review to a commerce case and made its own independent judgment about whether the minimum coverage provision would accomplish that objective. “Based on an extensive legislative record, Congress reasonably concluded that the minimum coverage provision will mitigate the problem of cost-shifting in the health care market. Indeed, the CBO has estimated that, without the minimum coverage provision, there would be 16 million more people without insurance in 2019,” the petition states.
Taxing power. The DOJ also argues that Congress’ taxing power provides independent authority for enactment of the minimum coverage provision. The DOJ concedes that the practical operation of the minimum coverage provision is as a tax. The provision amends the Internal Revenue Code and will generate some revenue. In addition, the provision is part of the ACA’s larger statutory scheme to expand insurance coverage through various Code amendments, including tax penalties for large employers that adequate coverage to full-time employees. As such, the minimum coverage provision is “the mirror image of statutory provisions of the sort that have long been regarded as within Congress’s broad discretion to determine the amount of tax owed, and falls equally within Congress’s broad taxing power.”
Anti-Injunction Act. Note that the Eleventh Circuit did not address the Anti-Injunction Act (AIA) question, but two other circuits did and they reached conflicting results. The Sixth Circuit in Thomas More v. Obama found the AIA did not bar the challenge to the individual mandate because the ACA penalty is not a tax, while the Fourth Circuit in Liberty University v. Timothy Geithner, found the AIA prohibits a suit seeking to bar the collection of a tax.
The DOJ contends the AIA does not bar challenges to the minimum coverage provision and asks the Court to consider the applicability of the AIA along with the Constitutional issues. By including this question in its petition, the DOJ has seemingly provided the Court with an opportunity to sidestep the Constitutional questions. And yet, a ruling on this issue could have far-reaching consequences for non-health reform-related cases in the future.
Other petitions in Eleventh Circuit case. The 26 states involved in the case and the other challengers, including the National Federation of Independent Business (NFIB), had filed their own petitions for certiorari in the case prior to the government’s filing. The states ask the court to address, among other issues, whether the mandate exceeds Congress’ powers and, if so, to what extent the mandate can be severed from the remainder of the ACA. The other challengers’ question presented is “whether the ACA must be invalidated in its entirety because it is nonseverable from the individual mandate that exceeds Congress’ limited and enumerated powers under the Constitution.”
“The Eleventh Circuit ruling confirmed NFIB’s view that the individual mandate in the health-care law is unconstitutional. It is now imperative that the Supreme Court rule on whether the entire law can stand without the mandate,” said Karen Harned, executive director of NFIB’s Small Business Legal Center. “The sooner the Court takes up this case, the sooner small businesses and individuals will know whether they will have to bear the full weight, financially and economically, of this bad law.”
“While the survival of the new health-care law remains an open question, small businesses and individuals will continue to face uncertainty and trepidation, hesitant to hire or expand,” Harned said. “In filing our petition today, we are attempting to impress upon the Court the urgency of this issue.”
Petition from Sixth Circuit. The DOJ also has responded to the petition for certiorari (filed on July 26, 2011) in the Thomas More Law Center v. Obama case arising out of the Sixth Circuit. In that case, the Sixth Circuit ruled that the ACA and its individual mandate are constitutional. The individual mandate is "a valid exercise of legislative power by Congress under the Commerce Clause," the court held.
The Sixth Circuit noted that the Supreme Court has previously held that Congress may regulate economic activity, even if wholly intrastate, as long as it substantially affects interstate commerce, and that Congress also may regulate even non-economic intrastate activity if doing so is essential to a larger scheme that regulates economic activity.
Next steps. The DOJ has asked the Court to hold the petition in the Thomas More case pending the disposition of its petition in the Florida case.
It is now widely expected that the Court will agree to hear one of these appeals by the end of 2011 and likely make a decision in the summer of 2012.
“The Department has consistently and successfully defended this law in several courts of appeals, and only the 11th Circuit Court of Appeals has ruled it unconstitutional. We believe the question is appropriate for review by the Supreme Court,” according to a statement posted on the DOJ’s website.
“Throughout history, there have been similar challenges to other landmark legislation such as the Social Security Act, the Civil Rights Act, and the Voting Rights Act, and all of those challenges failed. We believe the challenges to Affordable Care Act — like the one in the 11th Circuit — will also ultimately fail and that the Supreme Court will uphold the law,” according to the DOJ statement.
Appellate court ruling. The Eleventh Circuit upheld the district court’s ruling that the mandate exceeded Congress’ power under the Commerce Clause, but reversed the finding that the provision is not severable from the remainder of ACA, thus keeping the law’s other provisions intact. The court also found the individual mandate was enacted as a regulatory penalty, not a revenue-raising tax, and, as such, is outside Congress’ power under the Taxing and Spending Clause.
Questions presented. The question presented in the petition is "[w]hether Congress had the power under Article I of the Constitution to enact the minimum coverage provision."
The DOJ also suggests that the Court direct the parties to address the following question: "[w]hether the suit brought by respondents to challenge the minimum coverage provision of the [ACA] is barred by the Anti-Injunction Act, 26 U.S.C. 7421(a)."
Commerce power. The DOJ argues the minimum coverage provision is a valid exercise of Congress’ Commerce Power because it sets forth a rule that governs how individuals finance their participation in the health care market. This rule targets the main vehicle of such financing -- insurance. The petition indicates that the economic conduct of the uninsured and the resulting cost-shifting have direct and well-documented effects on interstate commerce.
In addition, the DOJ opposes the respondents’ argument that the minimum coverage provision regulates “inactivity.” “No court of appeals has accepted that proposition, which lacks any foundation in the Constitution’s text or this Court’s precedents,” the petition states.
Further, the DOJ argues that the Eleventh Circuit failed to defer to Congress’ policy judgments regarding its objective of reducing cost-shifting. Instead, the court inappropriately applied a “strict scrutiny” level of review to a commerce case and made its own independent judgment about whether the minimum coverage provision would accomplish that objective. “Based on an extensive legislative record, Congress reasonably concluded that the minimum coverage provision will mitigate the problem of cost-shifting in the health care market. Indeed, the CBO has estimated that, without the minimum coverage provision, there would be 16 million more people without insurance in 2019,” the petition states.
Taxing power. The DOJ also argues that Congress’ taxing power provides independent authority for enactment of the minimum coverage provision. The DOJ concedes that the practical operation of the minimum coverage provision is as a tax. The provision amends the Internal Revenue Code and will generate some revenue. In addition, the provision is part of the ACA’s larger statutory scheme to expand insurance coverage through various Code amendments, including tax penalties for large employers that adequate coverage to full-time employees. As such, the minimum coverage provision is “the mirror image of statutory provisions of the sort that have long been regarded as within Congress’s broad discretion to determine the amount of tax owed, and falls equally within Congress’s broad taxing power.”
Anti-Injunction Act. Note that the Eleventh Circuit did not address the Anti-Injunction Act (AIA) question, but two other circuits did and they reached conflicting results. The Sixth Circuit in Thomas More v. Obama found the AIA did not bar the challenge to the individual mandate because the ACA penalty is not a tax, while the Fourth Circuit in Liberty University v. Timothy Geithner, found the AIA prohibits a suit seeking to bar the collection of a tax.
The DOJ contends the AIA does not bar challenges to the minimum coverage provision and asks the Court to consider the applicability of the AIA along with the Constitutional issues. By including this question in its petition, the DOJ has seemingly provided the Court with an opportunity to sidestep the Constitutional questions. And yet, a ruling on this issue could have far-reaching consequences for non-health reform-related cases in the future.
Other petitions in Eleventh Circuit case. The 26 states involved in the case and the other challengers, including the National Federation of Independent Business (NFIB), had filed their own petitions for certiorari in the case prior to the government’s filing. The states ask the court to address, among other issues, whether the mandate exceeds Congress’ powers and, if so, to what extent the mandate can be severed from the remainder of the ACA. The other challengers’ question presented is “whether the ACA must be invalidated in its entirety because it is nonseverable from the individual mandate that exceeds Congress’ limited and enumerated powers under the Constitution.”
“The Eleventh Circuit ruling confirmed NFIB’s view that the individual mandate in the health-care law is unconstitutional. It is now imperative that the Supreme Court rule on whether the entire law can stand without the mandate,” said Karen Harned, executive director of NFIB’s Small Business Legal Center. “The sooner the Court takes up this case, the sooner small businesses and individuals will know whether they will have to bear the full weight, financially and economically, of this bad law.”
“While the survival of the new health-care law remains an open question, small businesses and individuals will continue to face uncertainty and trepidation, hesitant to hire or expand,” Harned said. “In filing our petition today, we are attempting to impress upon the Court the urgency of this issue.”
Petition from Sixth Circuit. The DOJ also has responded to the petition for certiorari (filed on July 26, 2011) in the Thomas More Law Center v. Obama case arising out of the Sixth Circuit. In that case, the Sixth Circuit ruled that the ACA and its individual mandate are constitutional. The individual mandate is "a valid exercise of legislative power by Congress under the Commerce Clause," the court held.
The Sixth Circuit noted that the Supreme Court has previously held that Congress may regulate economic activity, even if wholly intrastate, as long as it substantially affects interstate commerce, and that Congress also may regulate even non-economic intrastate activity if doing so is essential to a larger scheme that regulates economic activity.
Next steps. The DOJ has asked the Court to hold the petition in the Thomas More case pending the disposition of its petition in the Florida case.
It is now widely expected that the Court will agree to hear one of these appeals by the end of 2011 and likely make a decision in the summer of 2012.
Friday, September 23, 2011
Close To A Million Young Adults Have Insurance Through Health Reform
As noted earlier, implementation of health reform provisions in 2014 is projected to dramatically reduce the number of uninsured.
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With little fanfare, mostly general support, and virtually no opposition, one provision of the Patient Protection and Affordable Care Act already has helped to cover between 500,000 and 900,000 new individuals.
According to recent figures from the Census Bureau, even though young adults are the age group least likely to have health insurance, 18-24 year olds were the only age group to experience a significant increase in the percentage with health insurance, from 70.7% in 2009 to 72.8% in 2010. This two percentage point increase in the share of adults 18-24 with coverage represents 500,000 more young adults with health insurance.
This increase in the share of 18-24 year olds is most likely due to the provision in the Patient Protection and Affordable Care Act (ACA) that allows children to remain on their parents' plans until age 26 According to an issue brief from the Department of Health and Human Services' Office of the Assistant Secretary for Planning and Evaluation, "Given that the fraction with health coverage was stable or decreasing in other groups, the two percentage point increase in share with health coverage among 18-24 year olds almost certainly reflects the effects of the extension of dependent coverage to age 26."
Data from the National Center for Health Statistics of the Centers for Disease Control and Prevention (CDC) agrees. Among adults aged 19–25, the percentage without health insurance at the time of the most recent National Health Interview Survey (NHIS) fell from 33.9% (10 million) in 2010 to 30.4% (9.1 million) according to the
This percentage is lower than in 1997, when 31.4% of adults aged 19–25 were uninsured.
This is especially good news for a population that is nearly three times as likely to be underemployed in the fourth quarter of 2009 as the oldest group of workers.
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Wednesday, September 21, 2011
Could Health Reform Really Eliminate Most Of The Uninsured And Underinsured?
Two recent reports suggest that the Patient Protection and Affordable Care Act (ACA) could reduce the majority of uninsured and underinsured in the country. Does that make the law worthwhile? For employees? For employers?
A Commonwealth Fund study found that provisions in the ACA to increase health insurance affordability could reduce the number of underinsured by 70%.
The number of underinsured adults—those with health insurance, but high medical expenses relative to income—rose by 80% between 2003 and 2010, from 16 million to 29 million, according to the Commonwealth Fund. The study defined underinsured adults as those who reported at least one of the following conditions:
- among low-income adults (those with incomes below 200% of the federal poverty level (FPL)), medical expenses that are 5% or more of income; or
- per-person deductibles that are 5% or more of income.
Nearly half (44%) of U.S. adults, or 81 million people, were either underinsured or uninsured in 2010, up from 75 million in 2007 and 61 million in 2003. Low-income families were most at risk of being underinsured, according to the Commonwealth Fund. Seventy-seven percent of those with incomes below 133% FPL, and 58% of those with incomes between 133% and 250% FPL were either underinsured or uninsured. If the ACA succeeds in reaching these individuals (those with incomes lower than 250% FPL), the number of underinsured could be reduced by 70% once the law is fully implemented.
According to the report, "The ACA can diminish these risks and alleviate concerns for families; however, the extent to which it will do so depends on benefit design, the choice of plans offered through the health insurance exchanges, and growth in health care costs relative to family income. If plan designs allow for high deductibles that apply to primary care and medications or high cost-sharing for essential care, more families will be exposed to financial risk. As such, designs will need to take a value-based approach that ensures access and financial protection for essential care."
The study, Affordable Care Act Reforms Could Reduce the Number of Underinsured U.S. Adults by 70 Percent, published in the online journal Health Affairs, contained responses from 4,005 adults age 19 and older in the continental United States.
Uninsured Could Be Down To 5%
In response to the ACA, three-quarters of Americans without health insurance are likely to obtain coverage starting in 2014, according to a recent survey by the Health & Life Sciences practice of Oliver Wyman, part of Marsh & McLennan Companies. Consequently, it appears that the ACA would reduce the proportion of uninsured to 5% of the population.
Under the ACA, approximately 33 million Americans will be required to purchase health insurance for themselves, and another 18 million uninsured will be eligible to receive coverage under Medicaid. Many will receive federal subsidies, and those who choose not to obtain coverage will pay a penalty.
The study, completed through detailed surveys of approximately 800 currently uninsured individuals, asked about their health status, their income, and their attitudes toward the health system. To determine how the uninsured would make buying decisions, participants were asked to choose from among a number of actuarial-appropriately priced potential options that may be available through the health insurance exchanges beginning in 2014. Participants also could elect to could buy insurance and instead pay the applicable penalty.
Overall, 76% of respondents chose to purchase insurance. "Our research shows that uninsured Americans overwhelmingly see value in coverage," said Terry Stone, a partner in Oliver Wyman's Health & Life Sciences practice. "But few really understand their options or even what a health care exchange is. They need to be educated."
Beginning in 2014, taxpayers with household income between 100% and 400% of the federal poverty line can qualify for a sliding-scale refundable health insurance premium assistance credit. With lower federal premium assistance credits, middle-income uninsured are less likely than low-income or high-income uninsured to buy health insurance: 34% of respondents with incomes between 300% and 400% of the FPL, and 28% of those with incomes between 250% and 300% of the FPL would not buy health insurance, compared with 18% of low income (those with incomes at 100% to 133% of FPL) and 19% of those with greater disposable income at 600% or higher of FPL.
"In today's political and economic climate, we can expect pressure to reduce subsidies," said Mr. Stone. "If that happens we're likely to see more people go without insurance—and unable to purchase coverage on their own. And the group most affected will not be the poorest, but middle-income Americans."
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Monday, September 19, 2011
Determining What’s Affordable Under Health Reform
The government recently responded to employers who have questioned how to determine whether their coverage is “affordable” under the Patient Protection and Affordable Care Act (ACA).
A large employer generally is subject to an assessable payment if any full-time employee is certified to receive an applicable premium tax credit or cost-sharing reduction and either
(1) the employer does not offer to its full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage; or
(2) the employer offers its full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage that either is unaffordable or does not provide minimum value.
Whether an employer's health coverage is affordable to its fulltime employees is essential in determining whether an employee can receive a premium tax credit and, in turn, whether the employer is subject to an assessable payment.
The Internal Revenue Service has proposed a safe harbor that would set the affordability standard at 9.5% of wages, instead of 9.5% of household income.
Proposed Safe Harbor
In Notice 2011-73, the IRS notes that the safe harbor it plans to develop is designed to make it easier for employers to determine whether the health coverage they offer is affordable coverage. Thus, the safe harbor would use 9.5% of wages that the employer paid to an employee, instead of the employee's household income, as the standard for affordability.
This modification would be made in response to employers' comments that they generally do not know employees' household income and would be unable to determine coverage affordability using that information. This contemplated safe harbor would only apply for purposes of the employer shared responsibility provision, and would not affect employees' eligibility for health insurance premium tax credits, the IRS emphasized. An employee's eligibility for the premium tax credit would continue to be based on the affordability of employer-sponsored coverage relative to an employee's household income.
Application of the safe harbor would be determined after the end of the calendar year and on an employee-by-employee basis, taking into account the W-2 wages and the employee contribution. So, for example, the employer would determine whether it met the proposed affordability safe harbor for 2014 for an employee by looking at that employee's W-2 wages for 2014 and comparing 9.5% of that amount to the employee's 2014 employee contribution for the employer-provided health insurance premiums.
An employer also could use the safe harbor prospectively, at the beginning of the year, by structuring its plan and operations to set the employee contribution at a level so that the employee contribution for each employee would not exceed 9.5% of that employee's W-2 wages for that year, the IRS said. "It is contemplated that employers, on a consistent basis, would be permitted to make reasonable and necessary adjustments for pay periods so that the employee contribution does not exceed 9.5% of the employee's W-2 wages."
In particular, IRS seeks comments on the following issues:
- Whether or how wages and employee contribution amounts would need to be determined for employees who are employed by an employer for less than a full year, employees who move between full-time and part-time status, situations in which the plan year is not a calendar year, and other similar special circumstances.
- Whether there are other possible safe harbor methods for determining the affordability of coverage under an employer-sponsored plan for purposes of calculating an employer's potential assessable payment under IRC Sec. 4980H(b).
- How to coordinate any affordability safe harbor with the full-time employee look-back/stability safe harbor described earlier in Notice 2011-36.
Comments may be submitted via email to Notice.Comments@irscounsel.treas.gov. The deadline for comments is Dec.13, 2011. Comments should include a reference to Notice 2011-73.
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Internal Revenue Service Notice 2011-73, issued on September 13, 2011.
The shared responsibility provisions will apply to certain employers starting in 2014. The proposed safe harbor would set the affordability standard at 9.5% of wages, instead of 9.5% of household income.
In Notice 2011-36, the IRS sought comments on potential approaches that could be incorporated in future proposed regulations addressing ACA "shared responsibility" provisions, particularly the definition of a "full-time employee."
Wednesday, September 14, 2011
Yet again, a court declares individual mandate unconstitutional
In the latest of a long string of court decisions addressing the constitutionality of the Patient Protection and Affordable Care Act (ACA), the U.S. District Court for the Middle District of Pennsylvania has decided that the ACA's minimum essential coverage provision, also known as the individual mandate, exceeds Congress' authority under the Commerce Clause (Goudy-Bachman v. United States Department of Health and Human Services, No. 1:10-CV-763, September 13, 2011). The court added that the ACA did not have to be thrown out in its entirety, and that the individual mandate provision could be severed from the ACA as long as the guaranteed issue reform and the preexisting condition reform were severed along with it, since the individual mandate was a funding source for those provisions.
The guaranteed issue provision states that health insurers may not deny coverage on the basis of various health status factors, such as medical condition or history, disability, or genetic makeup.This guarantees that everyone who applies for coverage will be accepted. The preexisting condition reform provides that insurers may not limit or deny coverage on the basis of a pre-existing medical condition. The rest of the ACA, the court advised, should be left intact.
The plaintiffs were a married couple, self-employed, with two children, and no health insurance. They had apparently been paying their medical bills out-of-pocket, and claimed that they had to drop their health insurance because their monthly premiums were unaffordable, and totaled more than their mortgage. The court pointed out that they had met the requisite standing requirements, showing an injury in fact when they asserted that they had to put off the purchase of a new car in order to save money for the ACA's required purchase of health insurance in 2014.
Judge Christopher Conner conceded in his opinion that the United States is certainly facing a health care crisis, and added that, although Congress intended that the individual mandate be enacted under its Commerce Clause power, "nothing prohibits Congress from redoubling its efforts and invoking another enumerated power, such as the Tax and Spending Clause...to address the uninsured free rider issue." Judge Conner declined to engage in the current somewhat hysterical warnings from certain sectors of society and from some previous court decisions, which have claimed that allowing Congress to require the purchase of health insurance would effectively turn the U.S. into a socialist state, and grant Congress infinite power to mandate the purchase of an unlimited numbers of goods and services, and simply stated that the individual mandate cannot withstand Constitutional scrutiny.
The court stated that, although the individual mandate represented an unprecedented use of Congress's Commerce Clause power, that was not the reason it was finding the individual mandate to be unconstitutional, and that it was, in fact, according respect to the Congress's rationale in passing it. The court also stated that it was rejecting the distinction of activity and inactivity in the health care market for purposes of Commerce Clause analysis, characterizing those particular distinctions and "imprecise and unhelpful." Various plaintiffs have tried to use that characterization to allege that the government is not regulating activity, but, instead, is impermissably regulating mere inactivity, or a lack of participation in the health care market.
The court then held, however, that it was problematic that the individual mandate in many instances regulates those who have not yet, and may never, enter the health care market. The court found that, until an individual both obtains health care services and fails to pay for them, that person's status has no effect whatsoever on interstate commerce. Thus, it said, the individual mandate impermissably regulates now for anticipated future conduct. Furthermore, the court rejected the government's argument that the market timing of the individual mandate should be allowed because of the uniqueness of the health care market, pointing to the Goudy-Bachman's argument that, in a sense, every market is unique in some way.
The court adopted the Eleventh Circuit's rationale regarding the government's Necessary and Proper approach to Commerce Clause analysis in Florida ex rel. Attorney General v. United States Department of Health and Human Services, F.3d, 2011 WL 3519178 (CA-11) 2011. In that case, the HHS had argued that the individual mandate was necessary to effect a larger regulatory scheme. The court rejected that argument, and held that the purchase of insurance required by the individual mandate did not burden or obstruct Congress's ability to enforce regulation of the health insurance industry, and that, just because the individual mandate was placed within a broader regulatory scheme did not mean it was essential to that scheme.
For more information. For a comprehensive analysis of the Patient Protection and Affordable Care Act, and additional information on health reform and other developments in employee benefits, just click here.
The guaranteed issue provision states that health insurers may not deny coverage on the basis of various health status factors, such as medical condition or history, disability, or genetic makeup.This guarantees that everyone who applies for coverage will be accepted. The preexisting condition reform provides that insurers may not limit or deny coverage on the basis of a pre-existing medical condition. The rest of the ACA, the court advised, should be left intact.
The plaintiffs were a married couple, self-employed, with two children, and no health insurance. They had apparently been paying their medical bills out-of-pocket, and claimed that they had to drop their health insurance because their monthly premiums were unaffordable, and totaled more than their mortgage. The court pointed out that they had met the requisite standing requirements, showing an injury in fact when they asserted that they had to put off the purchase of a new car in order to save money for the ACA's required purchase of health insurance in 2014.
Judge Christopher Conner conceded in his opinion that the United States is certainly facing a health care crisis, and added that, although Congress intended that the individual mandate be enacted under its Commerce Clause power, "nothing prohibits Congress from redoubling its efforts and invoking another enumerated power, such as the Tax and Spending Clause...to address the uninsured free rider issue." Judge Conner declined to engage in the current somewhat hysterical warnings from certain sectors of society and from some previous court decisions, which have claimed that allowing Congress to require the purchase of health insurance would effectively turn the U.S. into a socialist state, and grant Congress infinite power to mandate the purchase of an unlimited numbers of goods and services, and simply stated that the individual mandate cannot withstand Constitutional scrutiny.
The court stated that, although the individual mandate represented an unprecedented use of Congress's Commerce Clause power, that was not the reason it was finding the individual mandate to be unconstitutional, and that it was, in fact, according respect to the Congress's rationale in passing it. The court also stated that it was rejecting the distinction of activity and inactivity in the health care market for purposes of Commerce Clause analysis, characterizing those particular distinctions and "imprecise and unhelpful." Various plaintiffs have tried to use that characterization to allege that the government is not regulating activity, but, instead, is impermissably regulating mere inactivity, or a lack of participation in the health care market.
The court then held, however, that it was problematic that the individual mandate in many instances regulates those who have not yet, and may never, enter the health care market. The court found that, until an individual both obtains health care services and fails to pay for them, that person's status has no effect whatsoever on interstate commerce. Thus, it said, the individual mandate impermissably regulates now for anticipated future conduct. Furthermore, the court rejected the government's argument that the market timing of the individual mandate should be allowed because of the uniqueness of the health care market, pointing to the Goudy-Bachman's argument that, in a sense, every market is unique in some way.
The court adopted the Eleventh Circuit's rationale regarding the government's Necessary and Proper approach to Commerce Clause analysis in Florida ex rel. Attorney General v. United States Department of Health and Human Services, F.3d, 2011 WL 3519178 (CA-11) 2011. In that case, the HHS had argued that the individual mandate was necessary to effect a larger regulatory scheme. The court rejected that argument, and held that the purchase of insurance required by the individual mandate did not burden or obstruct Congress's ability to enforce regulation of the health insurance industry, and that, just because the individual mandate was placed within a broader regulatory scheme did not mean it was essential to that scheme.
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