Health Care Lawsuits - Constitutionality Corner blog
05/21/15
By Hadley Heath
The Bridge to Better Health Care project today released two new infographics that illustrate the impact of a ruling for the plaintiffs in King v. Burwell:
05/14/15
By Hadley Heath
Top Republican legislators are pondering how to respond should the Supreme Court rule that the federal ObamaCare subsidies are illegal in 37 states (the states that didn't establish their own health insurance exchanges). Remember, these subsidies trigger the individual and employer mandates in those states, meaning this ruling could significantly impact the way ObamaCare works. Here are a few Republican proposals for how to respond in this scenario:
Sen. Ben Sasse was perhaps the first to introduce his plan, "A First Step Out of ObamaCare." Here's what he would do for the transition:
...I will introduce legislation that uses the 1985 “Cobra” law as a temporary model to protect those harmed by ObamaCare. Cobra offers workers who have lost their jobs the option to keep their health coverage for 18 months—so Congress should offer individuals losing insurance the ability to keep the coverage they picked, with financial assistance, for 18 transitional months. This would simultaneously avert the full-scale implementation of ObamaCare in these 37 suddenly desperate states. It would also help protect suffering patients entangled in the court’s decision to strike down illegal subsidy payments.
Second, Republicans need to unify around a specific set of constructive, longer-term solutions, and then turn the 2016 presidential election into a referendum on two competing visions of health care. Simply opposing ObamaCare isn’t enough. Republicans must address this country’s health-care crises—cost and uninsurance—both of which have been exacerbated chiefly by excessive federal meddling.
Reps. Paul Ryan, John Kline, and Fred Upton have also introduced their "Off-Ramp From ObamaCare." Here's an excerpt:
First, make coverage more affordable. Any state that uses our off-ramp would be able to opt out of ObamaCare’s insurance mandates. These coverage requirements are driving up costs, so eliminating them would empower individuals and families to choose from a wider range of plans that fit their personal needs and budgets. Our proposal will also allow participating states to opt out of ObamaCare’s burdensome individual and employer mandates, allowing Americans to purchase the coverage they want…
Second, help people buy coverage. Right now, those who get insurance through their employer get a lot of help from the tax code, while some people who buy insurance on their own, including potentially the millions of Americans the IRS put at risk, get no help at all. So we would offer those in the affected states a tax credit to buy insurance.
And Sen. Ron Johnson has a plan too, which he detailed in his article, "A Make-or-Break ObamaCare Moment." Here's what he suggests:
The first goal of a Republican strategic response must be to prevent President Obama’s cynical use of the coming crisis from working. If Republicans wait, we will have no chance of countering Mr. Obama’s response. We must be ready to come swiftly to the aid of those who will be victimized once again by ObamaCare if the court rules against the administration. Republicans must come together now, agree on a legislative solution, and take that solution to the American public immediately.
Second, our legislation must give America another “bite at the apple”—one last chance to repeal ObamaCare and replace it with patient-centered, market-based health-care reforms. We must set up the 2016 presidential election as a contest between health-care decisions made by Washington politicians and bureaucrats and reforms that put patients back in charge.
And finally, just today Sen. Bill Cassidy announced that he too would suggest a plan. The Hill reports: "Cassidy’s plan, which would let states opt out of ObamaCare mandates and instead receive tax credits for health savings accounts, would work in tandem with the GOP’s more immediate response in case the court rules against ObamaCare." He will release more details on his plan after Memorial Day.
There are some obvious similarities to all the GOP proposals: Don't allow those who lose subsidies to suffer because of ObamaCare's illegal IRS rule, and provide a way for the nation to move forward to better health care laws in the future.
05/13/15
By Hadley Heath
Today the American Action Forum released a new study that shows the potential economic impact of King v. Burwell. If the Supreme Court rules that the IRS acted illegally in dispursing federal subsidies to states that did not establish their own health insurance exchanges, here's what would happen:
- 7.7 Million Individuals to Lose Health Insurance Subsidy
- $3,156 Average Annual Subsidy Impacted Individuals will Lose
- 11.1 Million Individuals Freed from Individual Mandate
- $1,200 Average Annual Penalty Impacted Individuals will be Freed From
- 262,000 Business Establishments Freed from Employer Mandate
- 237,000 New Jobs
- 1,270,000 Workers Added to the Labor Force
- $830 to $940 Increase in Pay Per Worker
- $13.6 Billion Increase in Total Pay
- 3,300,000 Part-time Workers Who May Gain Hours
Check out the full study here for more information.
04/15/15
By Hadley Heath
Below is the text of my just-published essay for the Constituting America project. My piece explains why the U.S. House is suing the Obama Administration over some of the administrative changes made to ObamaCare:
Articles 1, 2 and 3 of the Constitution describe the roles of the legislative, executive, and judiciary branches of the federal government. It’s clear that Congress is to make the laws, the administration to enforce the laws, and the courts to interpret the laws. Although this doctrine of Separation of Powers sounds simple, it’s not. The administrative branch holds great power to promulgate regulations and make executive decisions (orders and actions) that wield the force of law, and today, many fear that this power is being abused.
The Affordable Care Act, or ObamaCare, is the ultimate recent example. The text of this comprehensive health reform law occupies between 2,000 and 3,000 pages of paper, depending on font size. The regulations promulgated pursuant to this Act would require 20,000 pages of paper. This is largely because the language of the law itself delegates many determinations to the Department of Health and Human Services. It seems Congress makes the law, but the Administration makes the rules.
But with regard to ObamaCare, the Administration has gone far beyond offering regulatory guidance that adds clarity or specificity to the law. On many occasions, administrative agencies have made changes to the law, some of which may not stand up to constitutional scrutiny in light of the Separation of Powers.
According to the Galen Institute, the executive branch has altered the implementation of ObamaCare 30 times. A few of these actions have elicited a legal response from government watchdogs, taxpayers, and Congress. These lawsuits are examples of our system of checks and balances at work.
In one of these cases, U.S. House v. Burwell, one of the three branches (the judiciary) ironically will have to decide whether the constitutional lines that separate the powers of the other two (Congress and the President) will remain relevant.
Many of the administrative changes to ObamaCare have been implementation delays, including the enforcement of the employer mandate. In short, this mandate requires employers of 50 or more workers to provide health insurance or pay a penalty. ObamaCare says clearly, in the relevant Section 1513(d), “the amendments made by this section shall apply to months beginning after December 31, 2013.” But twice the Administration has acted unilaterally to change this enforcement date.
This is at the heart of the lawsuit filed by the U.S. House of Representatives against the Department of Health and Humans Services and Secretary Sylvia Burwell and Department of the Treasury and Secretary Jack Lew. The delay of the employer mandate is one claim in the suit, which also points to unconstitutional “offset” payments that the federal government has been making to insurance companies without Congressional appropriation. The House voted to file this lawsuit against executive overreach under the leadership of Speaker John Boehner.
In this case, the legislative branch is alleging that it has been injured by the unconstitutional actions of the defendants, which usurp the House’s constitutional authority to make legislation and to appropriate public funds. Although it is unprecedented for the U.S. House – as a body – to file suit against the executive branch, the plaintiff describes the actions of President Obama as extremely troubling and deserving of a response. They write in their complaint:
“The Administration has made no secret of its willingness, notwithstanding Article I of the Constitution, to act without Congress when Congress declines to enact laws that the Administration desires. Not only is there no license for the Administration to “go it alone” in our system, but such unilateral action is directly barred by Article I. Despite such fundamental constitutional limitations, the Administration repeatedly has abused its power by using executive action as a substitute for legislation.”
As the Supreme Court wrote recently in a different case, Burrage v. United States, “The role of this Court is to apply the statute as it is written – even if we think some other approach might 'accord with good policy.'” Replacing a few key words, the same could be said of the role of the executive branch, which is to enforce the statute as it is written, regardless of what administration officials believe to be the best policy. To change a policy, they should seek a legislative change from Congress (and accept Congress’s authority when it chooses not to enact such a change).
Abraham Lincoln said, “The best way to get a bad law repealed is to enforce it strictly.” Enforcing the law is the purview of the executive branch. But in the case of ObamaCare or the Affordable Care Act, the administration is loathe to enforce the law strictly as it was written, because doing so might make the law even less popular than it has been during the last five years. That’s the heart of the issue here.
Even so, it is not the prerogative of the executive branch to pick and choose among the sections and clauses of the laws, to selectively implement laws on its own timeline. This sets a bad precedent in favor of political expediency. But those who would put more and greater power in the executive branch should be warned: What one president does by executive order, the next president might undo the same way.
This was not the way our system was meant to work: Separated powers and a system of checks and balances are meant to ensure that our government follows the rule of law, not the rule of man by fiat. This Separation of Powers may keep the three branches from superseding each other, but this design is ultimately in place for the protection of the people. A divided government is a limited one, and a limited government allows for maximum individual freedom and human flourishing.
03/29/15
By Hadley Heath
Today the Supreme Court announced that it will not hear Coons v. Lew, a case that was first filed in August 2010 against ObamaCare's Independent Payment Advisory Board or IPAB. This board is tasked with reducing Medicare's costs, and wields incredible power. The Goldwater Institute, the group that is managing the litigation of the suit, explains that the case is about Separation of Powers, and that IPAB is "an unconstitutional consolidation of government power in an unelected, unaccountable executive agency."
The Court, by refusing to take up the case, is allowing a Ninth Circuit Court of Appeals decision to stand. The Ninth Circuit decided to throw the case out because plaintiffs had not shown any harm that they'd suffered as a result of IPAB.
Like many parts of ObamaCare, the implementation of IPAB has been delayed and changed via executive action. No one has been appointed to serve on the board, which was supposed to be put together in 2014. There have also been (unsuccessful) Congressonal attempts to repeal the IPAB.
IPAB, as designed by the Affordable Care Act, is supposed to be a 15-member board of appointees who serve 6-year terms. If Medicare spending increases by a certain amount, the IPAB is tasked with proposing cuts to the program. The IPAB proposal becomes law automatically, unless a supermajority in both houses of Congress acts to stop the IPAB cuts and replace them with cuts of an equal or greater amount. You can read more about the IPAB here.
Plaintiffs, and the Goldwater Institute, responded today by pointing out that their case isn't dead, it's simply "in a holding pattern" until someone experiences real harm because of IPAB (which has yet to be implemented). When someone is harmed, they can pick up their case and try again.