U.S. appeals on health care (UPDATED)
on Sep 28, 2011 at 3:59 pm
UPDATE 6:55 p.m.  The Obama Administration urged the Supreme Court Wednesday evening not to grant review of the Sixth Circuit Court ruling upholding the health insurance mandate, arguing that the issues can be fully explored in the government’s own case filed earlier in the day. Thus, it suggested that the Justices hold the Thomas More case pending the outcome of the government case. If, however, the Court opted to hear that case, it should be joined with the government case for review, the brief suggested. The U.S. brief in 11-117 is here.
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Arguing that Congress clearly had the constitutional authority to impose the new health insurance mandate on citizens across the Nation, the Obama Administration on Wednesday afternoon filed its own challenge to a decision last month against that mandate by the Eleventh Circuit Court. The 34-page petition is here (docketed as 11-398). The Administration also asked the Court to consider whether the many challenges to the insurance mandate are barred by a federal law — the Anti-Injunction Act.
This was the third petition filed Wednesday seeking review of the Circuit Court’s August 12 ruling. In that decision, a divided three-judge Circuit panel struck down the insurance mandate, but ruled that the scuttling of that provision would not mean that the entire Affordable Care Act was unconstitutional. A group of states and other challengers are contending both that the mandate is invalid, and that that means no part of the law can be constitutionally enforced, since the mandate is so crucial to the overall Act. (The two other petitions filed Wednesday are discussed in this earlier post.)
“The court of appeals’ . . . decision,” the government filing argued, “is fundamentally flawed and denies Congress the broad deference it is due in enacting laws to address the Nation’s most pressing economic problems and set tax policy.”
Wednesday was the deadline for the Administration to file its response in the Supreme Court to an already pending case on the health care mandate — a case coming from the Sixth Circuit Court (Thomas More Law Center v. Obama, et al., docket 11-117). But, before filing that document, the U.S. Solicitor General’s office filed the government’s own petition for review of the separate decision by the Eleventh Circuit.  The two appeals courts differed on the constitutionality of the insurance-purchase mandate.
Whatever the Solicitor General now says about the Thomas More case and its potential for review (a question likely to be answered in the forthcoming reply), the filing of a petition on behalf of the U.S. government — and its filing so soon after the Eleventh Circuit had ruled — was a clear indication that the government wants and expects a ruling during the Court’s current Term on the new health care law. In fact, in a conference call with news reporters Wednesday afternoon, a senior Justice Department official said: “It is important to get a decision with finality and certainty sooner rather than later.” The official added that government agencies, the health insurance industry, and people across the Nation need to know how to put their affairs in order under the provisions of the Act.
By suggesting that the Court also address whether the lawsuits against the mandate are barred by the Anti-Injunction Act — an argument that the government itself does not now embrace, even though it formerly did — the Administration is in essence giving the Court an option of ending the litigation over the key part of the Act until after it actually goes into effect in 2014, and is enforced. In the telephone briefing for reporters, the Department official repeated the government’s view that Congress did not intend that the Anti-Injunction Act bar a case like this one, but said that the issue goes to whether courts have jurisdiction actually to hear those cases, so the suggestion was made to get the views of all sides in the dispute.
Although not yet ready to formally respond to the petitions filed Wednesday by the business group and by the states, urging the Court to strike down the entire law, the Department official said that the government believes that the judges who have ruled that the mandate could be severed from the rest of the new law were correct; the official noted that only one judge has taken the contrary view.
Most of the government’s petition (titled U.S. Department of Health and Human Services, et al., v. Florida, et al.) was devoted to a defense of the insurance mandate, and a critique of the Eleventh Circuit majority’s view that the provision exceeded Congress’s powers.  Congress, it argued, had constitutional authority to enact the provision under both its power to regulate the interstate health insurance market, and its power to pass new tax laws.
In the final three pages of the petition, it turned to the issue of whether the Anti-Injunction Act has taken away the authority of federal courts to rule on the validity of the mandate and the penalty that is to be used to enforce it. The government, the document said, still holds to the view that the law does not apply in this situation, but nevertheless urged the Court, upon granting the case for review, to call for briefs from all counsel to discuss the issue.
The Fourth and Sixth Circuit Courts, the filing said, disagree on whether that law applied in this situation. If the other parties in the case take the same view as the government — that is, that the Anti-Injunction Act does not apply — the Court should consider naming a friend-of-Court to make an argument that it does, indeed, apply. If the Court finds that the Act does not apply, “it can then decide the constitutional questions,” the petition suggested.
As an alternative, the government said that, if an appeal is filed in the Fourth Circuit case (Liberty University v. Sebelius), the Court may then want to appoint someone to argue that the Fourth Circuit was right in applying the Anti-Injunction Act to scuttle that challenge.
