How the Fourth Circuit’s ruling today in King v. Burwell may help challengers in the ACA subsidies fight

Three-judge panels of two federal courts of appeals today issued directly conflicting rulings on a key IRS regulation implementing the Affordable Care Act. This regulation authorized subsidies for those purchasing insurance from government exchanges, regardless of whether those exchanges were established by the federal government (as in most states) or by an individual state. If this regulation is invalid and subsidies are therefore not available on exchanges established by the federal government, then one leg of the government’s three-legged stool in the Affordable Care Act is removed in more than half the states in the country.

In Halbig v. Burwell, a split panel of the D.C. Circuit held the regulation invalid. Shortly thereafter, the Fourth Circuit issued a directly contrary decision in King v. Burwell, upholding the IRS regulation. Most news coverage thus far has focused on the D.C. Circuit’s decision. There may be a few reasons for this: (1) lots of policy journalists in D.C.; (2) the D.C. decision came first; and (3) the D.C. decision would alter the status quo significantly, while the Fourth Circuit decision would maintain the status quo.

The Fourth Circuit decision is important as well, though less for what it holds than for how its upholding of the regulation might actually benefit the challengers who lost the panel decision. In short, the Fourth Circuit’s decision may speed up the timing of Supreme Court review of this issue. Here’s why: En banc review would probably be favorable for the government in both courts. This means it is likely that the government will seek en banc review in the D.C. Circuit case. The decision to grant en banc review by itself would vacate the panel decision, thus eliminating the existing circuit split, at least for the time being. And if the en banc D.C. Circuit were to rule differently from today’s three-judge panel, then there would not be a circuit split with the Fourth going forward. In the absence of the Fourth Circuit decision, then, it would take a while before the Supreme Court takes a case raising this issue, and the Court might never grant if there is no split. But because the en banc Fourth Circuit is likely favorable for the government, the plaintiffs in that case are likely to bypass en banc review and head straight to the Supreme Court. The Court has discretion whether to grant certiorari, of course, but a circuit split on such an important part of a massive regulatory scheme is the sort of thing that the Supreme Court should hear. Having a final decision in favor of the government therefore is of some help to the challengers because it enables them to go to the Supreme Court more quickly.

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The healthcare litigation: facial vs. as-applied challenges, severability, the Anti-Injunction Act, judicial restraint, and state resistance

The papers from the “Everything But the Merits” symposium on the healthcare litigation held at the University of Richmond School of Law last November (11/11/11) will be published in the March 2012 issue of the University of Richmond Law Review. Draft versions of several are now available on SSRN. The paper with the most immediate relevance to the ongoing litigation is Edward Hartnett’s, which addresses the topic of facial and as-applied challenges.

Here are links to the currently available SSRN versions of the papers:

A. Christopher Bryant (Cincinnati), Constitutional Forbearance

Tobias A. Dorsey (Federal Practice), Sense and Severability

Edward A. Hartnett (Seton Hall), Facial and As-Applied Challenges to the Individual Mandate of the Patient Protection and Affordable Care Act

Elizabeth Weeks Leonard (Georgia), The Rhetoric Hits the Road: State Resistance to Affordable Care Act Implementation

Kevin C. Walsh (Richmond), The Anti-Injunction Act, Congressional Inactivity, and Pre-Enforcement Challenges to Section 5000A of the Tax Code

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The Anti-Injunction Act and section 5000A of the tax code (aka “the individual mandate”)–my new paper addressing the puzzle of congressional inactivity

I recently posted to SSRN a draft version of the paper that arose out of my participation in the “Everything But the Merits” symposium on the healthcare litigation held at the University of Richmond School of Law last November (11/11/11). The papers from the symposium will be published in the March 2012 issue of the University of Richmond Law Review.

The title of my paper is The Anti-Injunction Act, Congressional Inactivity, and Pre-Enforcement Challenges to Section 5000A of the Tax Code.

Abstract below.

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A perspective from 1890 on nullification and the role of the federal courts, in light of the States’ challenge to the minimum essential coverage provision

The Supreme Court granted a motion last week to add two individuals to the case it will hear addressing the constitutionality of the minimum essential coverage provision in the Affordable Care Act. (See Lyle Denniston’s post on the order at SCOTUSBlog.) This makes it less likely that the Court will need to reach the question whether the States can bring a justiciable challenge to that provision, which imposes obligations on individuals but not on States. That is all for the good, as the States do not have standing.

In the course of reading on an unrelated subject, I came across the following quotation that I thought worth passing along:

If Congress passes a law which exceeds the powers granted to it, the States–now that the doctrine of nullification is dead–do not raise the question of constitutionality, and contend with the national government, but the law goes quietly into the statute-book, and any person who feels aggrieved by it brings it before the courts, as he would the by-law of a railroad company the validity of which he wanted to test.

1 A. Lawrence Lowell, Essays on Government 104 (1890).

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If a member of an Indian tribe has no standing to challenge the minimum coverage provision, does Mary Brown?

In the previous post, I asked whether a member of an Indian tribe has standing to bring a constitutional challenge to the minimum coverage provision in § 5000A of the tax code (aka the “individual mandate in Obamacare”). A member of an Indian tribe is in an unusual position under § 5000A. She is obligated to have minimum essential coverage, but she is exempt from the penalty for non-compliance. See 26 U.S.C. § 5000A(e)(3). Assuming that the penalty for non-compliance is the only legal consequence for not having minimum essential coverage, I do not see how she would have standing to bring a constitutional challenge to the requirement that she have minimum essential coverage.

If that is right, then what about Mary Brown? She is one of the private plaintiffs in the constitutional challenge to § 5000A to be decided by the Supreme Court. Ms. Brown’s lawyers have notified the Supreme Court that she has filed a petition for bankruptcy. Although there is not enough public information to make a conclusive determination, Ms. Brown’s financial situation probably qualifies her for a penalty exemption in § 5000A(e). If Ms. Brown does fall within one of the penalty exemptions, are there any arguments to support her standing that differ from those available to the member of an Indian tribe?

One that comes to mind is that financial circumstances are subject to change, whereas tribe membership is stable throughout one’s life. If a person’s qualification for exemption varies from month to month, then that person comes in and out of the legal crosshairs of someone with whom one can have a justiciable controversy. This difference is relevant, because someone permanently exempt has no legal adversity with anyone that would give rise to a justiciable controversy. The sometimes-exempt person, by contrast, sometimes does have such legal adversity.

The justiciability problem posed by a sometimes-exempt person is best thought of as a mootness problem rather than a standing problem. The general rule is that standing is assessed as of the time of filing. If the sometimes-exempt person was not exempt as of the time of filing, and the person otherwise had standing, then a change giving rise to that person’s exemption presents a problem of mootness. That doctrine is more flexible than standing. In Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000), for example, Justice Ginsburg’s opinion for the Court expressed openness to an “argument from sunk costs.”

That is as far as I’ve taken the analysis for now. As always, I welcome suggestions, corrections, and other comments.

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Do members of Indian tribes have standing to challenge the minimum essential coverage provision?

If the government imposes a legal duty on you, but provides no sanctions for non-compliance (and there are no collateral legal consequences of any sort for non-compliance), do you have standing to challenge the imposition of the duty? That is one question posed by Section 5000A of the tax code, the provision in the Affordable Care Act more popularly known as the individual mandate.

Section 5000A requires “applicable individuals” to have “minimum essential coverage,” and it imposes a penalty on some “applicable individuals” who do not have “minimum essential coverage.” That is, there are some people who are required to have insurance but who are exempt from the penalty for not having it Members of Indian tribes, among others, are beneficiaries of this exemption.

Suppose a member of an Indian tribe wanted to sue the federal government to have the insurance requirement declared unconstitutional. Would he have standing to do so? I have trouble seeing how he would. It is not enough to be subject to allegedly illegal conduct. That conduct must cause injury. If non-compliance with the insurance requirement has no consequences for a member of an Indian tribe, then it does not cause any injury. Perhaps the would-be plaintiff can argue that he will buy insurance to comply with the requirement if it is constitutional because he wants to be in compliance with the law, but he will not buy the insurance if the requirement is unconstitutional. But that cannot be enough, because the “injury” of being forced to buy insurance is entirely self-inflicted; nobody is forcing the would-be plaintiff to do anything.

A better way of thinking about the “case” or “controversy” problem with a challenge by a member of an Indian tribe to the minimum essential coverage provision is in advisory opinion terms. The request for a constitutional ruling is purely advisory because there is no proper defendant who can be brought before the court and bound by a judgment. Nobody has anything to enforce against the would-be plaintiff, who simply seeks advice about whether the insurance requirement is constitutional.

This analysis would require alteration if there were some collateral legal consequences for non-compliance with the insurance requirement. But if the penalty in § 5000A is the only means by which the insurance requirement has any legal bite, there appears to be no Article III “case” that a member of an Indian tribe can bring offensively to challenge the insurance requirement.

I cannot think of the closest analogue to this situation, and cheerfully invite suggestions, corrections, contrary arguments, and so on.

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Two related non-merits issues to look at in today’s ACA filings

According to the Supreme Court’s December 8 briefing schedule in the challenges to the Affordable Care Act, the opening briefs are due today with respect to everything but the Medicaid issue. Here are a two related non-merits issues to look at in today’s filings:

1. How does the NFIB’s brief address the standing of the individual plaintiffs? The Wall Street Journal reported back in December on the bankruptcy filing of Mary Brown, who was the only plaintiff that the government conceded had standing to challenge Section 5000A (the minimum essential coverage provision). Ms. Brown’s personal circumstances may render her eligible for an exemption from the penalty for non-compliance with the minimum essential coverage requirement in § 5000A. Earlier this week, the Wall Street Journal reported that the NFIB’s lawyers sought to add as individual plaintiffs two more NFIB members. This is an unusual move, and one that the challengers would not have taken without good reason. (That is not to go so far as to say that the additions should be viewed as an implicit concession about a lack of standing without the to-be-added plaintiffs, only that the lawyers viewed the downside of not seeking to add plaintiffs as higher than the downside of doing so.) In a letter filed with the Supreme Court disclosing Ms. Brown’s bankruptcy, the private plaintiffs said that they would explain in their opening brief why Ms. Brown still had standing. Today is the day they will make good on that promise.
2. How does the court-appointed amicus curiae address the Anti-Injunction Act issue? There are several arguments that Mr. Long can make, and it will be interesting to see his assessment of their relative strength by their positioning in the brief.

These two issues may look unrelated on their face, but there is a connection between the AIA issue and Ms. Brown’s standing. One of the arguments that the challengers have previously advanced is that they are challenging the requirement to have insurance but not the penalty for non-compliance. In their view, the mandate is a “free-standing legal requirement” while the penalty is a means of enforcing it. Presumably, this assertion about the internal separability of §5000A with respect to the mandate and the penalty will also be part of the argument for Ms. Brown’s standing. The argument would presumably be that, although Ms. Brown’s financial hardship exempts her from the penalty (under § 5000A(e)), she is still subject to the legal requirement to have minimum essential coverage.

I’m skeptical that these arguments resting on the internal separability of § 5000A succeed. But I will withhold judgment until I see the best presentation of these arguments in the challengers’ briefs.

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Fourth Circuit rejects constitutional challenges to ACA provisions . . . regarding black lung benefits

The Fourth Circuit yesterday rejected constitutional and other challenges to various changes made to the Black Lung Benefits Act by the Patient Protection and Affordable Care (“PPACA” or “Affordable Care Act” or “ACA” or “Obamacare” and so on). Judge Wilkinson wrote the opinion in West Virginia CWP Fund v. Stacy, which was joined in by Chief Judge Traxler and Judge Wynn.

The principal constitutional challenges were substantive due process and Takings Clause claims regarding a statutory provision that extended certain benefits to claims that were filed after January 1, 2005 and pending on or after the date of the ACA’s enactment (March 23, 2010). The challengers sought to distinguish Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976), in which the Supreme Court rejected a due process challenge to the Black Lung Benefits Act. The challengers sought to analogize their challenge to Eastern Enterprises v. Apfel, 524 U.S. 498 (1998), in which five Justices voted to hold unconstitutional a certain retroactive imposition of liability in the coal industry. The five Justices in the Eastern Enterprises majority did not agree on a theory of unconstitutionality. Four found a violation of the Takings Clause, while one (Justice Kennedy) found a substantive due process violation. (The remaining four found no constitutional flaw.)

Judge Wilkinson’s opinion applies Usery v. Turner Elkhorn Mining, distinguishes Eastern Enterprises, and in the course of doing so, also reiterates the Fourth Circuit’s view that the rejection of a Takings Clause theory by five Justices–on the ground that a simple obligation to pay does not amount to a taking–“is more authoritative than the plurality’s conclusion” that the imposition of such an obligation could amount to a taking.

The opinion contains two interesting passages regarding the Affordable Care Act more generally. First, Judge Wilkinson concludes in a footnote that the BLBA amendments in the ACA would survive as severable even if the Supreme Court were to hold the individual mandate unconstitutional (as it has been asked to do). Second, Judge Wilkinson resoundingly rejects, because it threatens the separation of powers, the challengers’ argument that the BLBA amendments only passed due to their inclusion in massive and unwieldy ACA:

[P]etitioner’s argument that the BLBA amendments only passed due to their “inclusion . . . in approximately 2,700 pages of healthcare legislation,” Petitioner’s Reply Br. at 27-28, threatens the separation of powers by inviting courts to scrutinize the process by which a coordinate branch of government goes about its business. Likewise, it invites every loser in a legislative fight to contest not only the constitutionality of Congress’s final product, but the way that Congress went about enacting it. Such a plunge into the depths of Capitol Hill should be undertaken—if at all—only in the most extraordinary of circumstances, circumstances that are plainly not presented here. In sum, the difficulties with petitioner’s view are evident and legion.

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What does Rosenkranz’s theory of judicial review say about the who, what, and when of challenging the individual mandate?

Eugene Volokh reports that Georgetown Law’s Nicholas Rosenkranz will be guest-blogging on the Volokh Conspiracy about The Subjects of the Constitution and The Objects of the Constitution, two articles by Rosenkranz that appear in the Stanford Law Review.

I admire the ambition of these articles, which are more ambitious than anything I’ve attempted to date. But I have some pretty fundamental disagreements with their substance. While I’ve been meaning to think through some of these disagreements in a careful scholarly analysis, I have not had a chance to turn to that yet. Accordingly, I look forward to Rosenkranz’s posts. Perhaps the posts will dispel some of my concerns. If not, I suspect they will help me to understand our differences better. 

The constitutional challenges to the individual mandate in the Affordable Care Act seem as good a place as any to figure out how a theory of judicial review cashes out. One question that I will have in mind as I read the posts and comments will be this: What does Rosenkranz’s theory of judicial review say about the who, what, and when of challenging the individual mandate in federal court? 

This admittedly compound question has three parts that focus on three different aspects of judicial review: “Who” relates to standing; “what” relates to substance; and “when” relates to timing. 

An aggressive reading of Rosenkranz’s articles indicates that the best combined answer is: (1) anyone subject to any aspect of the Affordable Care Act; (2) can challenge the individual mandate; (3) immediately upon enactment of the Affordable Care Act into law.

If this combination of answers is right under Rosenkranz’s theory, then Rosenkranz’s theory must be wrong. Or so I believe at present. 

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