- Prof. Jonathan H. Adler, Case Western Reserve University School of Law
- Mr. Simon Lazarus, Constitutional Accountability Center
- Ms. Carrie Severino, Judicial Crisis Network
- Mr. Robert N. Weiner, Arnold & Porter LLP
- Moderator: Mr. Robert Barnes,The Washington Post
- Introduction: Mr. Dean A. Reuter, The Federalist Society
By Hadley Heath
Today the Supreme Court announced that it will not hear Coons v. Lew, a case that was first filed in August 2010 against ObamaCare's Independent Payment Advisory Board or IPAB. This board is tasked with reducing Medicare's costs, and wields incredible power. The Goldwater Institute, the group that is managing the litigation of the suit, explains that the case is about Separation of Powers, and that IPAB is "an unconstitutional consolidation of government power in an unelected, unaccountable executive agency."
The Court, by refusing to take up the case, is allowing a Ninth Circuit Court of Appeals decision to stand. The Ninth Circuit decided to throw the case out because plaintiffs had not shown any harm that they'd suffered as a result of IPAB.
Like many parts of ObamaCare, the implementation of IPAB has been delayed and changed via executive action. No one has been appointed to serve on the board, which was supposed to be put together in 2014. There have also been (unsuccessful) Congressonal attempts to repeal the IPAB.
IPAB, as designed by the Affordable Care Act, is supposed to be a 15-member board of appointees who serve 6-year terms. If Medicare spending increases by a certain amount, the IPAB is tasked with proposing cuts to the program. The IPAB proposal becomes law automatically, unless a supermajority in both houses of Congress acts to stop the IPAB cuts and replace them with cuts of an equal or greater amount. You can read more about the IPAB here.
Plaintiffs, and the Goldwater Institute, responded today by pointing out that their case isn't dead, it's simply "in a holding pattern" until someone experiences real harm because of IPAB (which has yet to be implemented). When someone is harmed, they can pick up their case and try again.
By Hadley Heath
Last year, government watchdog organization Judicial Watch filed a lawsuit against the District of Columbia Health Exchange Authority for its decision to allow Members of Congress and their staff (12,359 people in all) to obtain health insurance through the DC small business exchange. It's obvious that Congress is not a small business, but the DC exchange made a special exemption, a move that could be illegal.
This lawsuit is caught up in legal gymnastics.
First, the defense that the DC government used wasn't a defense at all. Basically, the health exchange passed the buck to the Office of Personnel Management, which they say overrode their decision-making and allowed for the special exemption for Congress. When it comes to the categorization of Congress as a "small business," the DC government, in its Motion to Dismiss the case, seems to agree with the plaintiff:
The Health Benefit Exchange Authority was created by the District of Columbia Council under the ACA, and authorized to operate a SHOP Exchange [“Small Business Health Options Program”] in the District through which qualified small businesses could access health coverage for employees. By limiting the SHOP Exchange to “small employers” with an “average of not more than 50 employees during the preceding calendar year,” D.C. Code 31-3171.01 prevents Congressional enrollment in the D.C. Shop Exchange because Congress does not fall within the definition of “small employer.”
But then, the lower court granted the dismissal. Why? Because the plaintiff, a DC resident and taxpayer, lacks standing to challenge the decision (according to the court). The court points out that no local funds were used to create the exchange in question, and therefore the local taxpayer lacks standing. Like I said, legal gymnastics.
The case is on appeal.
In the meantime, not all Members of Congress are content to watch this injustice take place: Senator David Vitter has been a crusader for fairness and has attempted on multiple occasions to have ObamaCare applied equally to Members and Congressional staff, just as it is applied to their constituents who work outside of Congress. He has launched an investigation into Congressional enrollment in ObamaCare, which so far has not been welcomed by his colleagues.
By Hadley Heath
Now that oral arguments are over and reporters from inside the courthouse have made it back to their desks, the reactions are coming strong.
From Ilya Shapiro, Cato Institute:
The four liberal justices clearly believe that an exchange established “for” or “in” a state by the federal government is the same as an exchange “established by the state,” to quote the relevant statute. Justices Scalia and Alito (and presumably the silent Thomas) equally firmly believe that words mean what they say.
So this case, as expected, turns on the views of Chief Justice Roberts and Justice Kennedy, who gave very little away at oral argument. If the government wins here, then not only will Obamacare continue to be rewritten by the IRS, but any executive agency – and any future president – will be able to rewrite any law. Accordingly, for the sake of the rule of law, I fervently hope that Roberts and Kennedy decide to enforce the Affordable Care Act as written and let Congress clean up its own mess.
From Philip Klein, Washington Examiner:
The plaintiffs in the case, represented by Michael Carvin, have argued that the authors of Obamacare intended to withhold subsidies from those states that didn't set up their own exchanges as an incentive for them to do so. But that interpretation, Kennedy said, would raise questions relating to the sovereignty of states.
Solicitor General Donald Verrilli Jr., speaking on behalf of the Obama administration, seized on this point, arguing, "Our reading is the pro-federalism ruling." Justice Samuel Alito was more sympathetic to the challengers. He argued that in past cases, the Court has deemed it coercive if the federal government sets consequences for states regarding certain decisions, but then doesn't realize those consequences because they aren't clear.
However, in this case, he said, states still have the option of setting up exchanges and getting subsidies. Carvin argued that the government interpretation of the law is actually the more intrusive, because of the mandates. Obamacare's fines against employers that do not offer health insurance coverage are triggered when a worker claims government subsidies to purchase insurance on an exchange — but in states where workers can no longer legally receive those subsidies, then there are no fines. Carvin argued that under the Obama administration's interpretation of the law, the federal government is able to unilaterally make decisions about the personnel policies of businesses in every state.
From Sarah Kliff, Vox.com:
There were big surprises at the Supreme Court on Wednesday, where justices heard oral arguments in an Obamacare case that could determine the fate of the health care law.
Ruth Bader Ginsburg questioned whether the plaintiffs in King v. Burwell, a case challenging the legality of Obamacare's insurance subsidies, even had standing to challenge the Affordable Care Act. Anthony Kennedy raised new questions about constitutionality — questions that neither the government nor the challengers brought up in their briefs. And Samuel Alito threw a total curve ball, describing an idea for subsidies no one saw coming.
National Journal's Dylan Scott reports with some reactions from Michael Cannon and Jonathan Adler:
The two men who masterminded the latest legal challenge that imperils Obamacare were feeling pretty good about their chances after Wednesday's oral arguments at the Supreme Court.
Michael Cannon, a Cato Institute scholar, and Jonathan Adler, a Case Western University law professor, sat in on the hearing.
"I'm optimistic because the two swing justices were very skeptical of the government's argument," Cannon said.
Adler concurred. "I think we saw today is that the government's efforts to make this a textual case don't seem to be appealing to a majority of the court," he said," and that the sorts of arguments that could potentially support the government's position would pose grave risks to other federal programs."
Chief Justice John Roberts didn't say much during Wednesday's hearing, and Justice Anthony Kennedy was tough on both sides. He did seem concerned about the federalism implications of a ruling in favor of the plaintiffs, saying during the argument that it would raise "a serious constitutional problem." Adler acknowledged is one of the most difficult issues for their side.
Overall, today was not encouraging for petitioners. Of course, the oral arguments in the 2012 cases NFIB v. Sebelius and HHS v. Florida were considered to be a train wreck for the government, and then the government ended up winning with the upholding of the individual mandate (although losing the Medicaid expansion challenge). It's difficult to guess what the Supreme Court will do.
By Hadley Heath
If you're like me and can't be inside of the Supreme Court today watching the oral argument hearing live, never fear, here are some resources to help you keep track:
SCOTUSblog has a live blog here: http://www.scotusblog.com/
Wall Street Journal has a live blog here: http://blogs.wsj.com/washwire/2015/03/04/live-blog-supreme-court-hears-king-v-burwell-health-law-case/
By Hadley Heath
If you missed the Federalist Society expert panel on King v. Burwell, you can view it online here: