Supreme Court Arguments Get Even More Complicated

Supreme Court Arguments Get Even More Complicated

BY ARTHUR D. POSTAL,

FEBRUARY 9, 2012

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(Alex Brandon; AP)

The U.S. Solicitor General is asking the Supreme Court to grant it more time to air its views on the Anti-Injunction Act issue during oral arguments on the constitutionality of the healthcare reform law.

The development is important because appellate lawyers call the AIA issue a “sleeper.” If the court rules that this is a key threshold issue, it may determine that it cannot rule on the constitutionality of the healthcare reform law until 2015, after which Americans must pay a penalty under the law for failing to get healthcare insurance.

“This highlights the increasing importance of this issue as part of the Court's consideration of the health care law,” said George Patton, Jr., an appellate lawyer and a partner at Bose McKinney & Evans LLP, Washington, D.C. and Indianapolis.

He said the federal government has a long-term institutional interest in making sure the AIA will stop other cases from going forward while still allowing the health care case to be decided by the Court. "In essence," Patton said, "the United States is trying to thread the needle.”

Patton also said that, as noted in the motion, “The positions of the United States and private parties is also different on severability--the federal government argues that most of the health care law would remain if the minimum coverage provision is struck down, while the private parties say the entire law is not severable from the minimum coverage provision.”

The Solicitor General's arguments are contained in a 10-page motion submitted to the Supreme Court this week.

The Supreme Court will hear arguments on the law, the Patient Protection and Affordable Care Act, over a three-day span in late March. The first argument will be March 26.

In general, opponents of the law argue that it is unconstitutional for the government to require citizens to purchase health insurance or pay a penalty.

Other arguments involve whether the government has the authority to require states to pay more for Medicaid in order to finance healthcare for the poor. 

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Another issue is “severability,” whether declaring the mandate to purchase insurance unconstitutional strikes down the entire law, or just the mandate portion.

In its motion, the Solicitor General, Donald B. Verrilli, Jr., said the parties to the case “are in agreement on the allocation of time for the minimum coverage provision and Medicaid issues” during oral arguments in the case, scheduled for late March.

But, the Solicitor General said in the motion, “With respect to the AIA and severability issues, however, although the amicus curiae appointed by the Court on each of those issues agrees with the allocation of argument time to him under the proposed allocation set forth below, counsel for the private and state parties do not agree with the proposed allocation.”

The Solicitor General wants the argument on the AIA issue extended to 90 minutes.

Verrilli says in his motion that, “That expansion is appropriate in light of: the importance of this threshold issue, which has divided the lower courts and will determine whether the Court can entertain respondents’ challenge to the minimum coverage provision of the Affordable Care Act at all; the complexity of the legal issues involved; and the Court’s appointment of an amicus to argue that these suits are barred by the AIA.”

The motion said that the Solicitor General has been authorized “to represent that, as noted above, the Court-appointed amicus on this issue and counsel for the respondents join in this request to expand the oral argument time.”

The motion further says that, the Government, “alone among the parties, has a critical long-term institutional interest in the sound application of the AIA, because the Government has been and will continue to be the defendant in numerous cases in this Court and the lower courts in which the AIA is at issue.”

Verrilli adds in the motion, “It therefore is important that there be an opportunity for counsel for the Government to present, and for the Court to consider, a full explanation of the Government's position, which will be afforded by our proposed allocation.

Regarding severability, the government also seeks a re-ordering of time.

In the Solicitor General brief, Verrilli said, “petitioners and the Government do not agree on the proper result on severability if the Court were to hold the minimum coverage provision unconstitutional.”

The motion said that “Petitioners contend that in that event the entire Affordable Care Act must fall, while the Government takes the position that the Act's provisions concerning guaranteed issue and community rating in the insurance market are in severable from the minimum coverage provision but that the rest of the Act is severable.”

The motion said the “Government is thus in a position between the amicus and petitioners.

“Accordingly, counsel for the Government must have sufficient time at oral argument not only to respond to the amicus's position that the minimum coverage provision is severable from the Act's community-rating and guaranteed-issue provisions, but also to respond to petitioners' argument that the minimum coverage provision is in severable from the entire rest of the Act,” the motion said.

Here is a link to find out who your current government representatives are.

Just enter your street address and your zip code.

http://mapserve.leg.state.nv.us/website/lcb/viewer.htm

Supreme Court Gets Ready

Supreme Court Gets Ready

The Temptations may have sung about getting ready first, but the Supremes are actually doing it, at least as far as the constitutional challenge to PPACA is concerned. Since announcing last week that the court will hear NFIB v. Sebelius, the case being brought by both the National Federation of Independent Businesses and 26 states to challenge the health reform law, during 2012, the U.S. Supreme Court has taken a few key steps to prepare.
On Friday, November 18, the court announced the appointment of two attorneys independent from all parties to the case to argue two specific points in the case. H. Bartow Farr was asked to provide oral arguments in support of the 11th Circuit Court of Appeals' ruling that the individual mandate provisions of PPACA can be completely severed from the rest of the law. A second attorney, Robert A. Long, was appointed by the Supreme Court to make the case during oral arguments that the federal Anti-Injunction Act, a tax law that prevents legal action on a tax prior to its effective date, would prevent the court from ruling on the individual mandate’s constitutionality before it goes into effect, since the individual mandate penalties have been construed by some as a tax.
The court has also announced that the unprecedented five and half hours of oral arguments on the case will take place over two consecutive days. Normally, only one hour of oral arguments is allowed on Supreme Court appeal cases. While a timeframe for the oral arguments has not been released, many speculate that they will be heard at the end of March 2012. 
Meanwhile, both sides in this debate have ramped up their calls for Justices Kagan and Thomas to recuse themselves in the case. Conservative activists have been arguing that Kagan should recuse herself for months, since she previously served as President Obama’s Solicitor General. However, Kagan and the Justice Department have long maintained that Kagan was never involved in the development and defense of this case. PPACA supporters have encouraged Justice Thomas to recuse himself, since his wife has lobbied for entities that have opposed the law, and some groups feel this alleged conflict of interest was not disclosed. House Democrats wrote to the U.S. Judicial Conference on Friday urging that the U.S. Attorney General Eric Holder investigate Supreme Court Justice Clarence Thomas in this matter. Meanwhile, Senate Republican leaders sent a letter to Attorney General Holder questioning his assertions about Kagan’s previous involvement in the health law case. 
Not to be outdone, health policy nerds are also preparing for the case. The fine folks at Kaiser Health News have prepared this exciting chart that outlines all of the possible options for the health law, depending on how the Supreme Court rules on the variety of overlapping legal questions raised by the case. The folks at Politico describe it as a “choose your own adventure for health wonks,” and we would have to agree.  
 

http://www.kaiserhealthnews.org/Stories/2011/November/18/supreme-court-health-law-chart-2012.aspx

  

NAIC Approves Resolution Calling for an MLR Fix for Brokers

NAIC Approves Resolution Calling for an MLR Fix for Brokers

The National Association of Insurance Commissioners (NAIC) approved aresolution on November 22 calling on Congress and the Department of Health and Human Services to use their respective authorities to preserve consumer access to insurance agents and brokers by adjusting the Patient Protection and Affordable Care Act medical loss ratio requirements to accommodate agents and broker compensation. Following the vote, NAIC President and Iowa Insurance Commissioner Susan Voss released a statement and NAHU issued a press release. The resolution was approved by a vote of 26-20-5 during a teleconference meeting of the NAIC’s Plenary Committee, which consists of the insurance commissioners from all 50 states, the District of Columbia and the U.S. territories. The conference call lasted more than 90 minutes and was, at times, quite contentious, with several moves by various dissenting commissioners to modify the resolution and delay the effort. However, the supporters of the measure stood firm and voted to oppose both a proposed amendment to substantially weaken the resolution and a call to send the matter back to the NAIC’s Executive Committee for further study. The vocal proponents -- who included the resolution’s original author, Florida Insurance Commissioner  and NAIC President-Elect Kevin McCarty, North Carolina Insurance Commissioner Wayne Goodwin, who made the motion for consideration of the resolution, Louisiana Insurance Commissioner and NAIC Vice President Jim Donelon and Georgia Insurance Commission Ralph Hudgens, who ultimately moved for the vote on the resolution -- cited  the more than a year of debate on this issue and the urgency of MLR relief for both health insurance agents and brokers and health insurance consumers nationwide as reasons why immediate NAIC action was imperative. The role call vote of commissioners to approve the resolution was as follows: Voting to approve: Alabama, Alaska, Arkansas, Delaware, Florida, Georgia, Idaho, Indiana, Kentucky, Louisiana, Michigan, Mississippi, Nebraska, Nevada, New Hampshire, New Jersey, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Utah, Wyoming and American Samoan Islands. Opposed: Arizona, California, Colorado, Connecticut, District of Columbia, Hawaii, Illinois, Kansas, Maryland, Massachusetts, Minnesota, Missouri, New York, Oregon, Rhode Island, Vermont, Washington, West Virginia, the Northern Mariana Islands and Puerto Rico. Abstentions: Maine, Montana, South Dakota, Texas and Virginia. Not present or not voting were Iowa (for procedural reasons), Guam, New Mexico, the U.S. Virgin Islands and Wisconsin. NAHU is profoundly grateful for the NAIC’s support of agents, brokers and health insurance consumers that comes with the adoption of this resolution. We strongly encourage all members to thank their insurance commissioners who voted to stand with the agent and broker community on this issue. Now that the vote is finished, many members have asked what it means for association’s ongoing work to fix the MLR requirements. The resolution is merely a policy statement from the NAIC, so it will have no immediate impact. However, PPACA established a role for the NAIC with regard to the development of the MLR requirements and has accept virtually all of its counsel on both MLR specifically and PPACA generally to date. As HHS works to develop the final MLR requirements, this resolution will hopefully serve as the additional push needed to spur the Department to fix this problem through regulatory channels. In addition, the measure is expected to give additional interest and credibility to H.R. 1206, the bipartisan legislation to remove agent and broker compensation from the MLR calculation. The House Small Business Committee plans to hold a hearing on the impact of the MLR requirements on American health care consumers next month, and we expect that the NAIC resolution will factor into that hearing. H.R. 1206 currently has 138 bipartisan cosponsors, and more are always appreciated. Please encourage your representative to sign onto this measure today.