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Reform challenge prompted flood of legal filings

Consider this a required-reading list of the briefs


By Joe Carlson
Posted: March 25, 2012 - 8:00 am ET
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Proponents and enemies of the Patient Protection and Affordable Care Act have buried the U.S. Supreme Court under an unprecedented cache of filings arguing why the law should be upheld in whole, modified or tossed out like last week's garbage.

More than 150 filings were lodged with the court by various groups—so many that they required their own lawyer-run website, the ACA Litigation Blog, to keep them straight. Perhaps it's only right for a law whose final draft spanned 900 pages and took more than a year to write.

For those just interested in the bare essentials, however, Modern Healthcare has compiled a required-reading list of links in PDF form, which is below.

First up is the original decision by the 11th U.S. Circuit Court of Appeals (PDF) in Atlanta.

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This is the opinion that launched a thousand legal briefs. All four questions before the Supreme Court on March 26-28 stem from this decision. Because it offered a nuanced view and offered partial victories for both sides, it contained grounds for both the Obama administration and the reform law's opponents to appeal, which is what happened.

The 11th Circuit ruled that the ACA's individual mandate for nearly all Americans to buy insurance exceeded Congress' enumerated powers, but that the rest of the reform law could remain intact without it. The appeals judges also ruled that the Anti-Injunction Act would not prevent courts from deciding the case now, and that the law's expansion of Medicaid eligibility criteria is not illegally coercive of states.

On March 26, the first day of oral arguments before the court, spectators will be treated to a 90-minute argument involving three points of view on the Anti-Injunction Act.

U.S. Solicitor General Donald Verrilli Jr. (PDF) argues that the income-tax penalty imposed on individuals who don't buy health insurance is not truly a tax, and therefore the act should not block the Supreme Court from deciding the legality of the law this year.

Similarly, the 26 states and state officials (PDF) seeking to invalidate the ACA argue that act should not prevent reaching a decision on the law now because even though the mandate doesn't technically harm states by imposing tax-penalties on them, the law should not be interpreted to leave states “wholly without a remedy” to challenge acts of Congress like the reform law. Their attorney is Gregory Katsas.

Since both the Obama administration and the law's opponents say the Anti-Injunction Act should not prevent the court from reviewing the reform law's challenges now, the Supreme Court appointed a lawyer—Robert A. Long of Covington & Burling (PDF)—to argue that the act should prevent review of the ACA until after tax penalties are levied in 2014.

For the second day of oral arguments, Verrilli argues that (PDF) the requirement for nearly all Americans to buy health insurance is legal because it is part of a comprehensive framework of interstate economic regulation that seeks to prevent the uninsured from shifting billions of dollars' worth of uncompensated care onto the backs of those who carry insurance.

But the 26 states (PDF) say that Congress does not have the power to compel individuals to buy a private product as a means of inducing them to enter the stream of interstate commerce where their actions can be regulated. The states, represented by Paul Clement, say such a reading of the Constitution would remove nearly all limits on Congressional power.

Another second group of critics, including two private citizens and the National Federation of Independent Business (PDF), say Congress has never tried to force private individuals to enter into a transaction that costs them while benefitting a third-party such as a health insurer. Furthermore, the act would not allow patients to wait until they're sick to buy coverage, because the law still allows insurers to impose coverage-waiting periods and limited-enrollment periods. Their attorney is Michael Carvin.

The third day of oral arguments will see arguments on two different issues, one on whether the insurance mandate could be severed from the law, and the second on Medicaid expansion.

First, the NFIB (PDF) and the 26 states (PDF) argue that the reform law cannot function as Congress intended it to without the individual mandate, because the requirement to buy insurance is a fundamental aspect of Congress' overarching goal to expand insurance coverage. Therefore the entire law must fall if the mandate is struck, attorney Paul Clement will argue.

The Obama administration (PDF) argues that while it does not believe that the issue of severability can even be raised because the petitioners lack standing, if the court does strike down the mandate, it must also invalidate the provisions of the law that force insurers to offer coverage to virtually anyone who asks for it without regard to pre-existing conditions.

Since both the law's critics and the Obama administration agreed that the mandate standing by itself cannot be severed from the law, the court appointed a lawyer—H. Bartow Farr III of Farr & Taranto (PDF)—to argue that Congress did intend for every other provision of the law should stand if the insurance mandate is struck down.

The afternoon of March 28 will conclude with a discussion of Medicaid.

The 26 states that sued (PDF) to overturn the reform law say that Congress' decision to force states to maintain expansion criteria for Medicaid recipients is illegally coercive, because the program is so large that states could not afford to forgo the federal matching funds that would be withdrawn if they refused to meet the new eligibility rules.

The Obama administration (PDF) argues that the federal government has a long history of setting conditions on programs its helps fund, and that states' reluctance to turn down funding doesn't authorize them to disregard the terms of the funding no matter how large a share of the budgets they comprise.

Final decisions are expected by the end of June.


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