Brief summaries of the claims raised in the four non-state lawsuits

My compatriot Eric Lightman has just completed a helpful summary of all the claims being raised in the four other lawsuits challenging the constitutionality of the ACA--that is, the lawsuits being brought by plaintiffs other than state attorneys general. And those claims really run the gamut, from those grounded in the Free Exercise Clause of the First Amendment, to those asserting that Congress violated the Administrative Procedure Act, to those claiming that the means by which Congress enacted the Health Care and Education Reconciliation Act violated the Congressional Budget Act of 1974. You can find Eric's summary here on our wiki site.

“Commandeering” and the ACA’s Medicaid amendments (part 3)

You can find my prior posts on this subject here (part 1) and here (part 2).

So we come to the ultimate question concerning the states’ commandeering claim: whether the predicate facts asserted by the 20 states in the Florida lawsuit—that they entered into Medicaid with an understanding that Congress would not change its basic terms, and that they cannot withdraw from the program now because their residents rely on the existing scope of Medicaid and the states are financially incapable of funding the program on their own—are sufficient to demonstrate “coercion” as that term has been used by the Supreme Court in its spending power decisions (most critically, South Dakota v. Dole, 483 U.S. 203 (1987)).
   
For the moment, let’s bracket the question whether the concept of coercion has any intelligible purchase in this context. Many who have thought about the issue—including at least one United States Courts of Appeals, see Nevada v. Skinner, 884 F.2d 445 (CA9 1989)—have concluded that it does not. Again, states have no constitutional entitlement to federal funding. They are sophisticated, complex entities, not natural persons (who might be subject to coercive psychological pressures). And they possess an independent taxing power, which permits them (given the necessary political will) to raise additional revenue when necessary. All of these points undercut the notion that any strings that Congress might attach to federal funds offered to state governments—particularly when those strings concern the affected program itself, rather than some tangentially related aspect of state law—can ever be accurately characterized as compulsion. One can make a decent argument that, as a matter of law, states always have a choice to decline the funds.

But let’s set this question aside, as Dole indeed suggests there can be coercion in this context. Instead, let’s ask this question: What would be the consequences for constitutional law were the Supreme Court to uphold the states’ claim that the ACA’s Medicaid amendments are coercive? As I will endeavor to demonstrate, I believe the consequences would be significant—so significant that, even if the states might be correct in claiming that they have no practical choice but to accept the ACA’s new Medicaid requirements, the Supreme Court is exceedingly unlikely to rule in their favor.

“Commandeering” and the ACA’s Medicaid amendments (part 2)

As I discussed in an earlier post, the states’ most serious sovereignty-related (or Tenth Amendment) claim concerns the ACA’s amendments to Medicaid. Specifically, the states in the Florida lawsuit allege that, although a state’s participation is formally voluntary, they have no practical capacity to withdraw from the program. Thus, the ACA provisions that impose additional requirements on the states as a condition of receiving federal Medicaid dollars are coercive, and thus amount to an unconstitutional “commandeering” of the states.

On what basis do the states claim that they lack the practical capacity to avoid these requirements? The argument is laid out in paragraphs 65 through 68 of the complaint—preceded by the heading “The Act’s Requirements and Effects on the Plaintiff States Cannot Be Avoided”—which I reproduce here in full, given their significance:

The four other lawsuits

Our focus here has been--and will generally continue to be--the two lawsuits filed by state attorneys general, Virginia v. Sebelius (filed by Virginia alone) and Florida v. HHS (filed by Florida and joined by 19 other states). These are, in some sense, the "leading" lawsuits challenging the constitutionality of the ACA, and they more directly raise the constitutional questions concerning federalism. But it is important to note that there are (at least) four other lawsuits that have been filed contending that the Act is unconstitutional. They are:

* Thomas More Law Center v. Obama, 2:10-CV-1156 (E.D. Mich.)

* Liberty University v. Geithner, 6:10-CV-00015 (W.D. Va.)

* Association of Am. Physicians & Surgeons v. Sebelius, 1:10-CV-00499 (D.D.C.)

* Kinder v. Geithner, 1:10-CV-00101 (E.D. Mo.)

With the exception of the last one listed, these are all actions filed by private parties. The Kinder case was filed by the Lieutenant Governor of Missouri (Peter Kinder), and thus arguably implicates the interests of state governments. But it is unclear whether, under Missouri law, the Lieutenant Governor has litigating authority in a matter like this. The state attorney general has moved to intervene.

We will post the official filings in these cases on the wiki site (see the green tab above) as soon as we can track them all down.

On and off the wall

Randy Barnett responds to Jack Balkin's post of yesterday, which was responding to this post by Barnett from the day before. The question du jour, more or less, is whether Barnett's commerce and taxing powers arguments--embraced by 21 state attorneys general in the two lawsuits, as well as a decent number of legal academics--are "off the wall"--that is, generally outside the current mainstream of American constitutional understandings. And the stakes in this little debate are hardly trivial. No matter how skeptical one might be about the role of doctrine in Supreme Court decision making, it is quite difficult for the Court to base its decisions on legal arguments that are simply not respected in the legal community (i.e., considered "off the wall" by a vast majority of lawyers of all ideological stripes). So part of what is unfolding is an effort by both sides to shape the perceptions of various constitutional arguments within the legal community, and particularly among elite constitutional lawyers. This is part and parcel of how constitutional law is "made" in the United States.

A correction concerning the ACA’s Medicaid coverage expansion

Yesterday I wrote a first post on the constitutionality of the ACA's amendments to Medicaid, and specifically whether the Act's new requirements unconstitutionally commandeer the states. As part of that post, I identified the requirement that states must provide a "benchmark" benefits package to all the newly eligible Medicaid beneficiaries (persons who would not have been eligible under the state's criteria as of the enactment of the ACA but who become eligible due to the coverage expansion to all persons under 65 years of age up to 133 percent of the federal poverty level).

Thanks to a helpful e-mail this morning from Mark Regan, Legal Director for the Disability Law Center of Alaska, I now see that my characterization was misleading (or just plain wrong). The ACA's requirement that states provide the "benchmark" benefits package (the minimum that must be offered in any package sold through a state exchange) is only an expansion in the sense that it forbids states from offering the newly eligible a largely hollowed-out, catastrophic-type benefits package. It is actually a reduction if we compare the "benchmark" package to what was minimally required under Medicaid prior to the ACA, and what must still be offered going forward to those persons who are eligible for Medicaid under the pre-ACA criteria (i.e., the non-newly eligible).

(My wife actually suggested this point to me a few days ago, but, as usual, I was not paying as careful attention as I should have.)

Sorry for any confusion.

N.Y. Times editorial on Kagan confirmation

The New York Times today runs this editorial urging Senators on the Judiciary Committee to vote in favor of Elena Kagan's nomination to the Supreme Court. I mention this not for the opinion it expresses (which is rather predictable) but the subject matter on which it focuses: the breadth of Congress's commerce power and the constitutionality of section 1501 of the Affordable Care Act.

I find this noteworthy in two respects. First, who would have thought--even just two or three years ago--that the real "hot button" issue in a Supreme Court nomination would be the Commerce Clause? Not abortion, not gay rights, not the war on terrorism, but the subject students can barely stand as we slog through it in first-year constitutional law, the good ol' Commerce Clause.

Second, the editorial reflects the growing salience of the constitutionality of the ACA--and the breadth of Congress's enumerated powers more generally--as a political issue among the American public. Of course, many things could happen to defuse the matter before it ever reaches the Supreme Court. But at least at this point, the fight over the constitutionality of the ACA seems to have the markings of a sort of constitutional "moment" (to steal Bruce Ackerman's terminology): a point at which the American public becomes highly engaged on a significant issue of constitutional meaning, the resolution of which will have a lasting impact on our constitutional order.

Yet another reason that this whole matter, at least me, is terribly fascinating.

“Commandeering” and the ACA’s Medicaid Amendments (part 1)

In my view, the most serious sovereignty-related claim posed by the states in the Florida lawsuit concerns the ACA’s changes to the Medicaid program (Count 4 of the amended complaint). Medicaid is the joint federal-state spending program that provides health insurance for the indigent and the disabled, originally created in 1965 (now codified as title XIX of the Social Security Act).

States are not required to participate in Medicaid; indeed, Arizona did create its program until 1982. But if a state does participate—and every state now does—it must adhere to a variety of federal standards to qualify for the associated reimbursements from the federal government (reimbursements known as the “federal medical assistance percentage,” or FMAP). If a state fails to comply with the federal requirements, “the Secretary [of HHS] shall notify such State agency that further payments will not be made to the State (or, in his discretion, that payments will be limited to categories under or parts of the State plan not affected by such failure), until the Secretary is satisfied that there will no longer be any such failure to comply.” 42 U.S.C. §1396c.

The justiciability questions

One issue that has consumed much of the space in the parties’ briefs in both of the lawsuits—but which has received comparatively little attention in the media and elsewhere—is whether either of the disputes are presently justiciable. That is, are these controversies, presented by these plaintiffs at this particular time, within the power of the federal courts to resolve?

There are several distinct justiciability questions raised by the two lawsuits, some constitutional and some statutory. And these questions may be especially important in the coming months, as they may be the only issues that the district courts reach in their rulings this fall. My aim in this post is simply to identify all the justiciability questions in play; I hope to analyze them in more detail in some future posts.

Balkin responds to Barnett

Earlier today I mentioned this interesting post by Randy Barnett at The Volokh Conspiracy concerning the Justice Department's litigation strategy to defend the the ACA's individual insurance mandate as a valid exercise of Congress's power to tax under the General Welfare Clause. Jack Balkin has responded with this thoughtful post at Balkinization -- which not only discusses the merits of Barnett's claims, but also what they say about the nature of American Constitutional Development (that is, the process by which the meaning of our Constitution changes over time). Both posts deserve a close read.

It should be noted that this is (at least) round three for Professors Barnett and Balkin on the subject of the ACA. They squared off here in the New York Times's Room for Debate blog, and they have co-authored opposing amicus briefs in Virginia v. Sebelius.

Soon-to-be Justice Kagan and her potential recusal

The Senate Judiciary Committee is scheduled to vote tomorrow (July 20) on the nomination of Elena Kagan for Associate Justice of the Supreme Court. In connection with that vote, the seven Republicans on the committee last week sent Kagan this letter asking 13 questions about her involvement in the ACA litigation and the drafting of the ACA itself. The first paragraph of the letter states, “[w]e are concerned about the standard you would use to recuse yourself from litigation you participated in as Solicitor General. In particular, we are concerned about litigation that was clearly anticipated, but had not yet reached the point where your approval was sought for filings or pleadings.”

From all public appearances, Kagan does not seem to have played any role in the filings in the Virginia or Florida lawsuits. The government filed its substantive briefs in those cases well after President Obama had nominated her for the Court. And when asked by Senator Coburn at her confirmation hearing, Kagan stated that “[t]here was not” any time at which she had been asked to give her opinion on the constitutionality of the ACA. Nonetheless, it is certainly conceivable that the Solicitor General would be included in discussions within an administration about the constitutionality of pending legislation, particularly legislation of this significance. (It is worth noting, though, that this type of function is typically carried out by the Office of Legal Counsel within the Department of Justice, not the Office of the Solicitor General.)

In any event, it is clear that the Republicans are attempting to lay the groundwork a Kagan recusal if and when the constitutionality of the ACA reaches the Supreme Court. (The precise circumstances in which a Justice should recuse are notoriously unclear, as the Scalia-Cheney-duck hunting episode from a few years ago demonstrated.)

Warren Richey wrote this article for the Christian Science Monitor about the letter.

UPDATE: Kagan has responded to the 13 questions in writing, though I have yet to locate her letter. The AP is running this story on it. The gist is that, because she "never served as counsel of record nor played any substantial role" in the Florida v. HHS, she "would consider recusal on a case-by-case basis, carefully considering any arguments made for recusal and consulting with my colleagues and, if appropriate, with experts on judicial ethics."

Another useful site

Another good resource for those interested in following the ACA litigation -- and I'm guessing that's just about everyone who has found their way here -- is this site, maintained by Columbia Law School. Thanks to Mark Hall of Wake Forest University School of Law for the pointer.

Does the Obmana administration believe 1501 imposes a "penalty" or a "tax"?

That is the question that Robert Pear's article in yesterday's New York Times takes up. As Pear points out, President Obama (back in September 2009) vigorously defended ACA sec. 1501 as imposing a "penalty" for the failure to acquire health insurance -- no doubt to protect the Act from the charge that it was imposing a new tax on the middle class. But the Justice Department (as well as its amici) has defended the "minimum coverage provision," in both the Virginia and Florida lawsuits, as a valid exercise of Congress's taxing power (which derives from the General Welfare Clause of Article I, sec. 8, clause 1). As Jack Balkin has complained, the President “has not been honest with the American people about the nature of this bill. . . . This bill is a tax.” Balkin adds that, because it is a tax, it is "plainly constitutional."

Politically, the distinction between a penalty and a tax seems to matter. Legally, it is unclear that it does; the Supreme Court, at least since 1937, has typically only examined the form of the provision, and asked whether it raised any revenue at all. If so, it qualifies as a tax -- regardless of Congress's true purposes. But one of the fascinating questions in this litigation is whether the Supreme Court might be interested in revisiting this doctrinal point. Might five justices be willing to inquire into the intent of Congress in deciding whether a statutory provision constitutes a tax or a regulation for purposes of Article I? And if so, what would be the criteria for distinguishing the two?

Randy Barnett -- co-author of the CATO et al. amicus brief in the Virginia case and author of several pieces arguing that the individual mandate is unconstitutional -- discusses the significance of the article (and what it reveals about the true nature of ACA 1501) here at The Volokh Conspiracy.

Welcome!

A hearty welcome to anyone visiting the ACA litigation blog. Our goals here are quite modest:

1. To serve as a repository for all the official documents filed in the two lawsuits filled by state attorneys general challenging the constitutionality of the Patient Protection and Affordable Care Act, P.L. 111-148, as amended;

2. To provide news updates concerning any developments in the litigation as they occur;

3. To provide links to commentary, opinion pieces, and academic articles related to the litigation; and

4. To offer occasional commentary and legal analysis on the various claims at issue.

On the right, you will find links to the significant briefs, memoranda, and orders that have been filed thus far in the two cases, as well as the two statutes at issue. At the top (as a tab), you will find a link to our wiki, which will serve as a comprehensive repository for all the filings, articles, and blog posts related to the lawsuits.

Thanks for visiting. And if you have any questions or comments, you can contact us through this site.

Sincerely,
Brad Joondeph and Eric Lightman

State sovereignty and the insurance exchanges

Another sovereignty-related claim raised by the 20 states in the Florida lawsuit concerns the ACA’s provisions concerning the creation of so-called health insurance “exchanges.” ACA §1311(b) states that “[e]ach state shall, not later than January 1, 2014, establish an American Health Benefit Exchange” that facilitates the purchase of health insurance for individuals and small businesses, and that meets various criteria established in the Act itself and by regulations promulgated by the Secretary of HHS. Under ACA §1321(c), if a state elects not to create such an exchange (or if its exchange fails to meet the federal standards), “the Secretary shall (directly or through agreement with a not-for-profit entity) establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements.”

The states contend that these provisions are unconstitutional because they require state governments “to carry out insurance mandates and establish intrastate insurance programs for federal purposes under threat of removing or significantly curtailing their long-held regulatory authority as to intrastate insurance.” Amended complaint ¶88. The requirement to create an exchange “commandeer[s] the Plaintiff States and their employees as agents of the federal government’s regulatory scheme at the States’ own cost.” Id. And the threat of supplanting state law with a federal exchange within the state “would displace State authority over a substantial segment of intrastate insurance regulation (e.g., licensing and regulation of intrastate insurers, plans, quality ratings, coordination with Medicaid and other State programs, and marketing) that the States have always possessed under the police powers provided in the Constitution.” Id. ¶44. Consequently, the ACA’s exchange provisions “interfere[] in the Plaintiff States’ sovereignty in violation of the Ninth and Tenth Amendments and the constitutional principles of federalism and dual sovereignty on which this Nation was founded.” Id. ¶88.

The ACA’s employer mandates and their incursion on state sovereignty

One of the grounds on which the 20 states in the Florida lawsuit contend that the ACA unconstitutionally intrudes on the independent sovereignty of the states is by imposing several mandates and reporting requirements related to their provision of health insurance to their employees. (This is Count 6 in their amended complaint.)

To simplify a bit, ACA §1513 requires employers with at least 50 employees to offer their employees a minimum level of health insurance coverage, imposing tax assessments for the failure to meet this obligation. If employees choose instead to obtain coverage through a health insurance exchange, the employer is required to subsidize that coverage. ACA §1511 requires employers with at least 200 employees to automatically enroll all new full-time employees in a health insurance plan (if the employer offers one), though employees may opt out. And ACA §1514 requires most large employers to file a return with the IRS containing information about the health coverage they offer employees.

The states' due process claim

One of the grounds on which the 20 states in the Florida lawsuit have challenged the individual insurance mandate (ACA §1501) is that it violates the Due Process Clause of the Fifth Amendment. (Count Two of the amended complaint.) Specifically, they argue that, “[b]y requiring and coercing [individuals] to obtain and maintain such healthcare coverage, the Act deprives them of their right to be free of unwarranted and unlawful federal government compulsion.” (Amend. compl. p.24.)

Few commentators sympathetic to the states’ lawsuit have defended this claim—and understandably so. The basic problem is that §1501 does not appear to infringe any right that the Supreme Court has previously recognized as “fundamental.” The liberty interest in not being compelled to purchase health insurance is not really analogous to the handful of unenumerated rights the Court has found to be fundamental, such as the right to control one’s reproduction, to control the rearing of one’s children, or even to refuse unwanted medical treatment. Instead, the interest is principally economic: the right not to be forced to purchase something (or instead pay a penalty on one’s tax return). As such, §1501 should only trigger deferential “rational basis” review; to pass constitutional muster, it must only be rationally related to a legitimate governmental interest.

Some dates to keep in mind

Here are a few dates to keep in mind in the coming months as the litigation unfolds:

July 31: Expected date by which United States District Judge Henry Hudson (Eastern District of Virginia) will rule on the United States's motion to dismiss in Virginia v. Sebelius. (Argument on the motion took place on July 1.)

August 16: Deadline for Florida (and the other 19 states) to file their opposition to the United States's motion to dismiss in Florida v. HHS.

August 27: Deadline for the United States to file its reply in Florida v. HHS.

September 14, 10:00 am: Oral argument in the United States District Court for the Northern District of Florida (before Judge Roger Vinson) in Florida v. HHS on the United States's motion to dismiss.