Monday, March 26, 2012
Oh, Fascinating - On Healthcare Reform
The first part of the SC case (a bunch of combined cases, really) is on the issue of jurisdiction. If you accept the idea that the penalty for not having individual acceptable insurance is a tax, then the provision of federal law that says that you can't litigate a tax until after you pay it makes the entire issue here pretty much moot at this time.
Today's oral argument is striking - there is real concern in the court about the jurisdictional restraints in the act. That doesn't mean they won't vote that this case can't be brought at this time, but it does show the way their minds might run about other aspects of the act, and this will eventually be an issue under due process/equal protection grounds. Nor is it a liberal/conservative split. The "liberals" are not necessarily comfortable with this:
JUSTICE KAGAN: Mr. Long, aren't there places in this Act -- fees and penalties -- that were specifically put under the Anti-Injunction Act? There's one on health care plans, there's one on pharmaceutical manufacturers, where Congress specifically said the Anti-Injunction Act is triggered for those. It does not say that here. Wouldn't that suggest that Congress meant for a different result to obtain?One does get the sense that all of the justices are looking for ways to issue narrow rulings in this case, no matter how the issues may be decided.
JUSTICE SOTOMAYOR: Absolutely. But even the section of the code that you referred to previously, the one following 7421, the AIA, it does very clearly make a difference -- 7422 -- make a difference between tax and penalties. It's very explicit.
JUSTICE GINSBURG: Mr. Long, you said before -- and I think you were quite right -- that the Tax Injunction Act is modeled on the Anti-Injunction Act. And, under the Tax Injunction Act, what can't be enjoined is an assessment for the purpose of raising revenue. The Tax Injunction Act does not apply to penalties that are designed to induce compliance with the law, rather than to raise revenue. And this is not a revenue-raising measure because, if it's successful, they -- nobody will pay the penalty, and there will be no revenue to raise.
In the just-decided Douglas case, Breyer, Ginsburg, Sotomayor, Kagan and Kennedy won the day. That case was over CA's cuts to Medicaid reimbursements. A coalition of beneficiaries and providers sued to prevent the cuts on the grounds that the cuts were so deep that they violated the federal language requiring that state payments be sufficient to provide care, hence a violation of the Supremacy Clause (federal law trumps state law, usually). After the case was decided by the Ninth Circuit (multiple cases) in the plaintiffs' favor and taken up by the SC, HHS issued a ruling which substantially upheld CA's cuts. In a carefully indecisive action, the majority vacated the decision of the Ninth and sent it ALL back for review, hinting that the matter should proceed under APA but leaving open the question of whether the plaintiffs still had a case under the Supremacy Clause.
The "conservative" contingent of Scalia, Thomas, Roberts and Alito disagreed with the idea that individuals could sue under the act, and obviously therefore disagreed with the outcome.
I think the liberal contingent on the SC will be much more troubled with the various clauses in the ACA that remove decisions from court and even legislative arenas, or attempt to do so, than the conservative group.
The healthcare reform law as it stands is strikingly different than Medicare and Social Security, to which the vast majority of the population is subject. The health care reform law fragments the population, and the group of the population who are subject to by far the largest spending mandates under it is the smallest group. This, in conjunction with the clauses forbidding the courts to intervene in various administrative decisions, eventually would lay the grounds for a due process/equal protection case.
However such a case cannot be ripe until the law is fully in operation, and it seems as if this is a preliminary skirmish.
Really, read Ginsburg in the argument, When she doesn't get the reply she wants she feeds it to Verrilli:
JUSTICE GINSBURG: Why isn't Reed Elsevier -- if you're dividing jurisdiction from claims processing -- it says you have to register before you can sue. There are a lot of things you have to do before you can sue. So, why isn't Reed Elsevier like you have to pay a filing fee before you can file a complaint?Really interesting.