Tuesday, March 13, 2012

Legal Analysis: Health Care Reform (An Introduction)

by richmin3000

in one of my first posts, i gave a very short overview of the patient protection and affordable care act or "obamacare" as it's opponents call it. since it was passed on march 23, 2010 the PPACA has been challenged by several states.

most notably, hours after president obama signed the PPACA into law, the florida attorney general challenged the constitutionality of the bill in the united states district court, northern district of florida, a federal trial court. the case is entitled florida v. united states department of health and human services. all-in-all, 26 states joined in the suit on the side of the plaintiffs. on january 31, 2011, district judge roger vinson ruled that the 1) the individual mandate was unconstitutional and 2) the individual mandate was not severable from the rest of the PPACA.

after judge vinson's decision, both parties appealed (florida appealed part of the decision ruling that an expansion of medicaid was not coercive to the states - this was affirmed or upheld on appeal). in considering the government's appeal, the 11th circuit court of appeals, on august 12, 2011, ruled (in a 2-1 split, with a 207 page decision and an 84 page dissenting opinion) that 1) the individual mandate was unconstitutional and 2) the individual mandate was severable from the rest of the PPACA.

on november 14, 2011, the supreme court of these united states granted certiorari (they basically said yes) to hear oral argument on 3 separate appeals, florida v. us dept of health and human services; us dept of health and human services; national federation of independent business v. sebelius. and on top of the various named parties involved, there were dozens of amicus (non-party support) briefs submitted on behalf of the opposing sides. oral argument will be held on march 26th and 28th. five and a half hours have been blocked off for oral argument.

although the various cases each address distinct issues, for the purposes of this discussion, there is no distinction. the 4 issues at stake are as follows:
1) whether the individual mandate is constitutional.
2) whether the individual mandate can be severed from the rest of the PPACA.
3) whether the federal government can make a state choose between complying with the PPACA or lose federal funding for medicaid.
4) whether the anti-injunction act prohibits the filing of this lawsuit at this time.

we are going to focus most of the time on the 1st issue, which concerns the constitutionality of the individual mandate. for one, it's the most interesting and pressing matter for the public. two, the other aspects of this appeal would require a lot more research on my part (which i might not have the time to do).

before, we move onto the question of the individual mandate later this week, i want to quickly address the 4th issue about the anti-injunction act. this is an issue that concerns justiciability. that means that the role of a court is to resolve actual and present conflicts between parties that are permitted to request the intervention of the courts. courts are not designed to answer hypotheticals or give advisory opinions. and parties are not permitted to bring cases unless they have a legal basis to do so.

for example, i can not sue my neighbor who just bought the house next door because i fear that a tree he just planted is eventually going to encroach on my land. until that happens, there is no conflict or controversy. similarly, i can not sue on behalf of a total stranger if mcdonald's happened to spill hot coffee all over her. i have no injury and therefore am not permitted to ask for a resolution. terms such as standing, ripeness and mootness are applicable here.

in this case, the issue is that the individual mandate is coded within the IRS tax code because failure to abide by the individual mandate results in a tax penalty. that is the only means of enforcement. the anti-injunction act, as its pertinent here, prevents anyone from bringing suit to prevent a tax levy before said tax is collected. that means that no one can challenge the tax penalty imposed by the individual mandate or the individual mandate itself until the law goes into effect (the individual mandate does not go into effect until 2014) and until the first tax penalty occurs (since it goes into effect in fiscal year 2014, the first penalty won't be imposed until 2015). that would mean that this case is not yet "ripe" until 2015 and therefore this court can not decide on the constitutionality of the individual mandate at this time.

i have posted a video below from bloomberg law which discusses just this issue. what's interesting is that the government has not briefed this argument to the court (meaning they are not arguing the point) yet the supreme court apparently appointed a non-party lawyer to brief the issue so that it is still an issue that will have to play out. i can't imagine that this will prevent a determination of the individual mandate but crazier things have happened.

next time: we will discuss the individual mandate and what it is.


  1. Interesting post. I have never heard this point made.

  2. i would have been disappointed if you had not posted a comment. way to live up to expectations. i can't wait to hear the comments on the next few posts.

  3. This lady is a terrible guest. She is incapable of waiting her turn to speak. So annoying to listen to.

  4. Then she goes on and on without pause so the host of the show has to interrupt her to get a word in. Lawyers are annoying.