Category — Legal Challenges to the ACA

On November 14, 2011, the Supreme Court announced that it will hear challenges related to the Affordable Care Act (ACA) during its spring term. The Court has chosen to address four specific issues with respect to legal challenges of the health reform law:

(1) the constitutionality of the law’s requirement that all individuals purchase insurance (i.e., the Minimum Essential Coverage provision, also referred to as the individual mandate);

(2) whether the Anti-Injunction Act, a law which requires individuals to refrain from suing the federal government for the imposition of a tax until after the tax has been paid, bars a pre-enforcement challenge to the individual mandate until 2014 when the provision goes into effect;

(3) the constitutionality of the law’s Medicaid expansion requiring states to provide coverage to all adults under 65 with household incomes below 133 percent of the poverty level; and

(4) the issue of severability, as the Court must determine whether the law must be struck down in its entirety if one of the provisions is found unconstitutional, or whether that provision may be removed while the remainder of the ACA remains intact.

An extraordinary five-and-a-half hours for oral arguments have been granted: two hours on the constitutionality of the individual mandate, 90 minutes on the issue of severability, one hour on whether the Anti-Injunction Act bars some or all of the challenges to the insurance mandate, and one hour on the constitutionality of the Medicaid expansion.  Observers speculate that the arguments will be held in March and a decision may be issued by the Court by late June, well in advance of the 2012 Presidential election.

On November 8, 2011, the D.C. Circuit Court of Appeals upheld the individual mandate provision of the Affordable Care Act (ACA) as constitutional. The opinion, authored by Judge Silberman, is the fourth  appellate court ruling on the ACA and the second to uphold the law.  Recall that the 6^th Circuit also found the mandate constitutional in June. The 11^th Circuit has declared the individual mandate unconstitutional, and the 4^th Circuit has stated that the Anti-Injunction Act is a bar on its ruling until 2014. The Justice Department has already petitioned for review of the 11^th Circuit decision by the Supreme Court. According to observers, the growing split among appellate decisions makes it increasingly likely that the Court will consider taking on this issue during the fall term.

On September 28, 2011, the U.S. Department of Justice (DOJ) petitioned the Supreme Court to decide the constitutionality of the individual insurance mandate in the Affordable Care Act (ACA). The DOJ is petitioning for review of the 11th Circuit decision issued by a three-member panel on August 12, 2011, which struck down the individual insurance mandate as unconstitutional under the Commerce Clause while upholding the remainder of the ACA. DOJ petitioned the Supreme Court in lieu of requesting a hearing by the 11^th Circuit en banc, and well in advance of the 90-day deadline for appeal. The effect of the DOJ’s timing, should the Supreme Court accept the petition, will be to push the decision in advance of the 2012 Presidential election. Twenty-six states have filed a joint petition for certiorari requesting that the entire law be struck down.

On January 31, 2011, federal Judge Roger Vinson of the Northern District of Florida issued his widely anticipated ruling in the litigation brought by the attorneys general or governors of 26 states, along with other plaintiffs, challenging the 2010 health care reform legislation.  Judge Vinson held unconstitutional the individual mandate provision.  That provision, section 1501 of the Patient Protection and Affordable Care Act, requires everyone (with limited exceptions) to purchase federally approved health insurance, or pay a monetary penalty, beginning in 2014.

Judge Vinson’s ruling brings to two the number of district courts that have held the individual mandate unconstitutional.  (Two other district courts have held the law constitutional).  Unlike Judge Henry E. Hudson of the U.S. District Court for the Eastern District of Virginia, however, whose decision invalidating the individual mandate was issued on December 13, 2010, Judge Vinson found that the individual mandate could not be severed from the Act’s remaining provisions and, thus, declared the entire health care reform law unconstitutional.  Judge Vinson reasoned that there are “simply too many moving parts in the Act and too many provisions dependent (directly and indirectly) on the individual mandate … for me to try and dissect out the proper from the improper, and the able-to-stand-alone from the unable-to-stand-alone.”[1]  To attempt such a task would be “tantamount to rewriting a statute in an attempt to salvage it;”[2] better to leave to “the watchmaker” the task of redesigning and reconstructing the “defectively designed watch.”[3]  Thus, although Judge Vinson upheld the Act’s expansions of the Medicaid program against constitutional challenge by the states, in the end his opinion holds that those provisions must fall—along with the entire Act—because, in the court’s view, they are not severable from the individual mandate. [Read more →]

As has been widely reported, on December 13, 2010, federal Judge Henry E. Hudson of the U.S. District Court for the Eastern District of Virginia ruled in favor of the motion for summary judgment filed by  Virginia’s Attorney General, Kenneth Cuccinelli, and invalidated the so-called “individual mandate” in the health care reform legislation.  There is no doubt that this case, which struck down one of the central provisions of the legislation, will make its way through the United States Court of Appeals for the Fourth Circuit and end up before the Supreme Court.  In his 42-page decision, Judge Hudson ruled as unconstitutional PPACA Section 1501, which requires that starting in 2014 virtually every American must have a minimum level of health insurance coverage or be subject to a tax penalty.   Although the court found that this provision exceeded Congress’s powers under the commerce and general welfare clauses of the U.S. Constitution, as a remedy, the court determined that it was appropriate to sever that section from the rest of the health care reform legislation instead of invalidating the entire health reform law. For additional analysis of this decision, please see the article on our sister-site, SCOTUSblog.”