Legal Health & You: Another Challenge to ObamaCare: Did It Start in the Right Place?

The Pacific Legal Foundation is trying to bring a new case to the U.S. Supreme Court challenging the Affordable Care Act, and vows to continue raising challenges “until the law is repealed or amended,”

Those of you who’ve read my past posts know that I use a pretty reliable method for predicting the outcome of federal court cases: most federal judges or justices will typically rule in a manner that is consistent with the political views of the president that appointed him/her, with certain exceptions, so long as there is a credible legal argument in favor of the position they favor.

So far, though, strict party line voting has not been the case in Sissel v Dept. of Health and Human Services. True, the federal judge who originally dismissed the case was appointed by President Obama, and the 3 D.C. federal appeals court judges who first upheld that dismissal were also Democratic appointees (Judges Rogers, Pillard and Wilkins, as per this Wikipedia article). But this past August 7, the case was denied for a rehearing “en banc” (meaning by all 11 active members of the appeals court) by a majority of the full panel, and while the 4 Republican appointed members disagreed with the decision not to grant re-hearing, they made it clear they would have upheld the original dismissal, just on different grounds. In other words, even the 4 Republican appointees would have dismissed the case, just on different grounds.

The judges’ disagreement was over constitutional issues. The original lawsuit had argued that since the ACA raised taxes, it was a revenue raising measure that must originate in the House of Representatives per Article I, section 7, clause 1 of the U.S. Constitution, but it originated instead in the Senate. The three judge appeals panel determined that the ACA included tax measures, but was intended to achieve non-tax purposes, so the “Origination Clause” didn’t apply. The dissenting judges agreed with the result (dismissal of the case) but for a different reason. They said the case DID originate in the House, because the Senate simply replaced major provisions of another bill that had started in the House, which is permissible. Since the original trial court judge dismissed the case on both grounds, they would still have upheld that decision.

All this begs the question: what will the Supreme Court do? The Supreme Court only accepts about 2% of the cases appealed to it each year. Under its internal rules, 4 of the 9 justices must vote to accept a case. If not, then the lower court case is upheld. The high court usually only takes a case that “could have national significance, might harmonize conflicting decisions in the federal Circuit courts, and/or could have precedential value.” They have a great deal of discretion and this is not a strict standard. So will they even take the case?

As I’ve pointed out, while 5 of the 9 members of the Supreme Court are GOP appointees, 2 of those (Chief Justice Roberts and Justice Kennedy) do not habitually rule on a strict party line basis, both ruled in favor of the Obama administration position in the most recent ACA case, and the Chief Justice wrote the original opinion upholding the ACA (while his conservative colleagues dissented). So, consistent with my prediction methodology, assuming that the other 3 Republican appointees will want to take the case, and the 4 Democratic appointees will not, what will Roberts and Kennedy do in this case?

While the 4 Republican appointees who dissented in the Appeals Court may have raised a good constitutional issue (and I for one think they did), as I said, they would have still upheld the original dismissal. There’s also no contrary opinion on this point of law from any other federal appeals court. This suggests something less than a burning controversy over the merits of the case. I also doubt that Justices Roberts and Kennedy have any appetite to take on another high profile ACA case when their Court has already twice ruled in its favor. They must be aware of opponents’ determination to keep bringing cases until they get a win, and my guess is that they will not want to encourage that impulse. Based on these reasons, I predict that they will conclude there’s no issue of enough “national significance” to justify hashing through yet another challenge to the ACA. In short, the Supreme Court will probably deny the request to appeal the Sissel case to their court. In the unlikely event that they hear the case, then I predict at least a 6-3 decision to uphold the original decision dismissing the case.

As usual, I’ll come back here and fall on my sword if either prediction is incorrect!

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