• November 13, 2015
    Guest Post

    by Samuel A. Marcosson, Professor of Law, University of Louisville Louis D. Brandeis School of Law

    On November 6, the Supreme Court granted cert in seven cases (which it promptly consolidated for briefing and argument as Zubik v. Burwell) to resolve the issue it left open when it ruled in Burwell v. Hobby Lobby that private, for-profit companies are entitled to a religious exemption from the Affordable Care Act’s mandate to provide contraceptive coverage to their employees. At issue is whether the accommodation the government provides to nonprofit employers satisfies the requirements of the Religious Freedom Restoration Act (RFRA). If it doesn’t, employees of these nonprofits will, like their counterparts at Hobby Lobby, lose their contraceptive coverage. A decision exempting the nonprofits from the contraceptive mandate would make Zubik one of the landmarks of the Term, and a disaster in the Court’s religion jurisprudence.

    Zubik tests the limits of the dangerous path the Court began to walk in Hobby Lobby. The majority opinion there departed from the Court’s long-standing approach in religious accommodation cases of carefully considering the impact of a proposed accommodation on third parties who would be burdened by it. In Hobby Lobby, of course, those third parties were the employees who lost coverage for contraceptive care that, under the ACA, is an essential element of comprehensive health insurance and which, for many, avoids enormous expense and “helps safeguard the health of women for whom pregnancy may be hazardous, even life threatening.” The Court gave almost no weight to the interests and needs of those employees who would be deprived of the essential coverage the ACA had mandated.

    The Court faces an even starker choice in Zubik because the claim on the other side of the scale, the burden claimed by the employers to their religious exercise, is more attenuated than it was in Hobby Lobby. A nonprofit that objects to providing contraceptive coverage receives an accommodation simply by certifying to HHS that it has a religious objection. As Justice Alito admitted in Hobby Lobby, a nonprofit which files the certification is “effectively exempted . . . from the contraceptive mandate.” In other words, to be accommodated under the ACA regulations, all the objecting nonprofits must do is tell HHS exactly what they are telling the Supreme Court: that they have a religious objection to providing contraceptive coverage.

  • August 4, 2015
    Guest Post

    by Simon Lazarus, Senior Counsel, Constitutional Accountability Center

    *This post originally appeared on Balkinization.

    The Texas challenge to DAPA

    In what the Washington Post’s Karen Tumulty tweeted as “The most underplayed story of the day,” on Friday, July 10, two of the three judges on a Fifth Circuit Court of Appeals panel made clear, during a contentious oral argument, their intent to leave in place a District Court injunction shutting down the Administration’s November 2014 decision to confer “deferred action” treatment on undocumented parents of U.S. citizens or lawful permanent residents, and on undocumented individuals who were less than 16 years old when they arrived here, if they come forward and pass background checks for criminal records or otherwise priority deportable activities.  As detailed by Marty Lederman and others, under regulations adopted by the Reagan Administration, and endorsed in 1986 amendments to the Immigration and Naturalization Act, deferred action treatment triggers freedom to work and receive benefits such as the Low Income Tax Credit and Social Security.

    The court argument concerned a legal challenge to the Administration’s program, officially styled Deferred Action for Parents of Americans (DAPA), filed by Texas’ high decibel conservative Governor Greg Abbott, on behalf of 25 other Republican-led states.  Earlier, on February 17, Texas federal trial judge Andrew Hanen had ruled against the Obama administration, and issued an injunction barring implementation of DAPA nationwide.  Texas’ Solicitor General had good reason to file in Hanen’s court; he was well-known for previous over-the-top accusations that the Department of Homeland Security “is clearly not” enforcing immigration laws, “helping those who violate them,” and, indeed, “completing the criminal mission” of transborder human traffickers.  Given the echoing hostility vividly on display from Fifth Circuit Judges Jerry Smith and Jennifer Elrod, their decision can pretty well be counted upon to leave Hanen’s injunction in place.  To have any hope of salvaging the DAPA program before leaving office in January 2017, President Obama will likely be back before the Supreme Court in a few months.

  • August 3, 2015
    Guest Post

    by Simon Lazarus, Senior Counsel, Constitutional Accountability Center

    *This post originally appeared on Balkinization.

    Chief Justice John Roberts sent President Obama off for the July 4 holiday in what must have been a good mood, secure that his signature legislative accomplishment, the Affordable Care Act, had survived a second lawsuit designed to cripple it.  In King v. BurwellRoberts had mobilized a 6-3 majority to reject a claim by health reform opponents that ACA-prescribed tax credits were not available on federally run exchanges.  In addition to helping secure Obama’s legacy, the decision evidently bumped up Obama’s public approval ratings.  But the celebration must be tempered.  This big win is not the President’s doing, nor that of the Executive Branch he controls.  Instead, it was due to two conservative justices, the Chief and Associate Justice Anthony Kennedy, whose agendas, while generally divergent from his, meshed on this important occasion.  How often will these stars align again? 

    That question is not academic.  King v. Burwell is by no means the last case in which the President’s political opponents are seeking to cancel or gut his key initiatives.  Indeed, two currently await decisions in lower federal courts. The first lawsuit is Texas’ challenge to the Administration’s immigration policy—to defer, on a case-by-case basis, removal of some four million undocumented immigrants who do not fall within DHS priorities for enforcing the nation’s immigration laws. The second lawsuit is House Republicans’ challenge to significant components of the administration’s ACA implementation.  A third challenge, to the EPA’s proposed Clean Power Plan —the crown jewel of Obama’s anti-global warming agenda— is likely when its regulations are finalized in early August.

    Over the next three days, I’ll discuss the upcoming challenges to Obama’s policy agenda. I begin, however, with a discussion of what Chief Justice Roberts’ opinion in King v. Burwell might mean for these lawsuits, and others that may follow them.

  • August 3, 2015
    Guest Post

    by Stacey Dembo, Law Offices of Stacey J. Dembo

    This summer will mark two important milestones for public benefit programs in the United States. The Social Security Act will be celebrating its 80th anniversary on August 14th‒President Franklin D. Roosevelt signed the Social Security Act into law on that date in 1935. And last week marked the 50th anniversary of the enactment of the amendments that expanded the Social Security Act to establish the Medicare and Medicaid programs. This 50th anniversary provides an opportunity for us to reflect on the vital lifelines Medicare and Medicaid provide for our nation’s most vulnerable.

    It’s hard to believe that before 1966 roughly half of all people 65 and over and many people with disabilities, children, pregnant women and low-income working Americans were unable to afford the medical care they needed. When President Lyndon B. Johnson signed the amendments creating Medicare and Medicaid, he said the programs would correct “the injustice which denies the miracle of healing to the old and to the poor.”

    Now 50 years later, Medicare and Medicaid together cover over 100 million people, or about 1 in 3 Americans. Medicare covers almost all elderly Americans and some younger adults who are disabled. Medicare Part A, which covers hospital stays, nursing home care and hospice, is financed by the payroll taxes workers and employers pay. Medicare Part B, which covers doctors’ visits, surgeries and medical devices like wheelchairs, is paid for by Medicare recipients through income-based premiums. Medicaid, on the other hand, is financed via federal and state funds. It covers low-income adults, people with disabilities, half of all low-income children and pregnant women.

  • March 7, 2015
    Guest Post

    by Rob Weiner, formerly Associate Deputy Attorney General In the United States Department of Justice, is a partner at Arnold & Porter LLP. This post first appeared at Balkinization.

    During the Supreme Court oral argument in King v. Burwell, the challengers persisted in claiming that the language of the Affordable Care Act is absolutely clear, that the principle of constitutional avoidance, as well as Chevron deference and any other relevant interpretive presumptions are unavailing because there is one and only one possible interpretation of the key provision at issue, Section 36B of the Internal Revenue Code.  That is in fact what the challengers must show—that their reading of the statute to deny subsidies in States with Federal Exchanges is incontrovertible. 

    But four Justices (apparently), the IRS, the Solicitor General, 22 States, and leading academic experts in statutory interpretation applying the definitions in the Act have read this same language to mean that tax subsidies are available in all States.  They have drawn this conclusion from the text of the Act itself, not by rewriting the language to promote the statutory purpose, but by giving it what they have concluded is a reasonable—in fact, compelling—interpretation.  Of course, the fact of a dispute regarding the meaning of statutory provisions does not by itself show the issue to be contestable.  But here, there is a critical mass of able, respected readers of the statute who differ with the challengers’ conclusion.  To label the interpretation by these readers as impossible, at odds with the English language, or nonsensical is to deny either their literacy or their candor.  Neither is in doubt. 

    As Justice Kennedy suggested during the argument, the clarity of the statute is also measured against the constitutional requisites of cooperative federalism.  That is another reason the Government should prevail in King.  As the challengers read the law, residents of States that fail to set up insurance Exchanges do not receive tax subsidies to help them afford health insurance, but those States remain subject to the insurance market reforms requiring insurance companies to offer insurance without regard to preexisting conditions and to price insurance based on community characteristics rather than the individual customer’s health situation.  If adopted, the challengers’ interpretation would send insurance markets in those States into a death spiral and impose hardships on millions of people.