Guest Post

  • June 30, 2015
    Guest Post

    by Robert N. Weiner, partner, Arnold & Porter LLP

    *This post originally appeared on casetext.com.

    The first lawsuit seeking to strike down the Affordable Care Act (ACA) came just seven minutes after the President signed the bill on March 23, 2010. The assaults continued even after the Supreme Court upheld the law as constitutional. For all but those first seven minutes, the ACA has weathered nonstop legal attack, as its opponents sought to enlist judges to undo their political defeats in Congress.

    To that end, an American Enterprise Institute Conference in late 2010 foraged through the 900 pages of the ACA in search of some plausible flaw to eviscerate the statute “as a matter of political hygiene.” All the quest turned up was an awkward phrase in what the Court in King called the “ultimate ancillary provision: a sub-sub-sub section of the Tax Code.” This previously undiscovered provision supposedly barred subsidies that help low-income families afford insurance if their States opted to have the Federal Government establish insurance Exchanges rather than doing it themselves. Congress, in other words, deliberately embedded a self-destruct mechanism deep in the statute.

    Before jumping to the four-word phrase at issue, it is not only useful but necessary to examine its context ‒ the history, purpose, and structure of the ACA, as the Court did in King. Congress enacted the ACA to reduce the number of people without health insurance. The law barred insurers from refusing to cover consumers because of their preexisting illnesses, but counterbalanced that prohibition with a requirement that virtually everyone maintain insurance coverage. To make that requirement affordable, the ACA directed each state to establish a marketplace, called an Exchange, that would function like Travelocity, affording individual consumers the knowledge and leverage to negotiate insurance contracts as favorable as those offered to purchasers of large group policies. To ensure that these Exchanges functioned everywhere, the Act instructed the Secretary of HHS to step in and establish “such Exchange” if the State did not do so itself. As a further step to make insurance affordable, the ACA also lowered the net cost by providing tax subsidies, based on income, for those purchasing policies on an Exchange.

  • June 30, 2015
    Guest Post

    by Sean J. Young, Staff Attorney, ACLU Voting Rights Project

    Yesterday, the United States Supreme Court issued a 5-4 decision in Arizona State Legislature v. Arizona Independent Redistricting Commission, which preserved a vital weapon against partisan gerrymandering, a practice which artificially keeps the dominant political party in power regardless of popular will. The Court held that the Elections Clause of the Constitution, as well as a federal statute (2 U.S.C. § 2a(c)), permit the people of Arizona to use the initiative process to take the congressional redistricting process largely out of the hands of state legislators (those who benefit directly from the redistricting process), and to entrust that important process to an independent body. 

    As has been widely reported, the congressional redistricting process in many places has devolved into an anti-democratic procedure where politicians essentially decide who they want their voters to be. Using demographic models and projections of voting patterns calculated down to the neighborhood-level, districts can be drawn in such a way (often into odd-looking shapes) so as to virtually guarantee an electoral outcome. Both parties are guilty of this. Thus, for instance, in 2012, in states where Democrats controlled the process, their candidates won about 56 percent of the vote and 71 percent of the seats. In states where Republicans controlled the process, their candidates won roughly 53 percent of the vote but 72 percent of the seats.  As one politician has put it, “We are in the business of rigging elections.”

    Though courts have long recognized the anti-democratic nature of partisan gerrymandering, they have thus far been reluctant or unable to stop it. So in states like Arizona and California, the people themselves have taken action. Voter-passed initiatives in both states have put redistricting into the hands of independent commissions, which are required to adhere to neutral redistricting principles such as ensuring compactness and contiguity. Though imperfect, independent commissions have been an important weapon in the fight against partisan gerrymandering.

  • June 29, 2015
    Guest Post

    by Lisa Heinzerling, the Justice William J. Brennan, Jr., Professor of Law, Georgetown University Law Center

    In Michigan v. EPA, the Supreme Court reviewed the Environmental Protection Agency's decision to regulate power plants under section 112 of the Clean Air Act. Section 112 is the provision regulating toxic air pollutants, such as mercury. The question before the Court was whether EPA reasonably interpreted the Clean Air Act to allow EPA to decline to consider costs in deciding whether to regulate power plants under section 112. The Court held that it was not reasonable to interpret the Act in this way. Thus, from the Court's decision, we know that EPA must consider costs in deciding whether to regulate power plants under section 112. There are, however, important questions that remain:

    1. We do not yet know what happens to EPA's rule while EPA does the analytical work the Court has required of it. The Supreme Court reversed the judgment of the D.C. Circuit and remanded the case for further proceedings consistent with its opinion. The case will go back to the D.C. Circuit for it to figure out how to address the Supreme Court's ruling. Certainly the case will eventually have to return to EPA; the D.C. Circuit itself will not attempt to undertake the consideration of costs the Supreme Court has ordered. But what happens between the time the case goes back to EPA and the time EPA makes a decision in light of the Supreme Court's ruling? That depends on the D.C. Circuit. The court will need to decide whether to remand or to vacate and remand; that is, whether to simply send the matter back to EPA while leaving the rule in place, or undo the rule in the interim. The D.C. Circuit has lately remanded quite a few agency rules, especially environmental rules, without vacating them. Given the amount of discretion left to the agency by the Supreme Court's decision (see below), and the fact that EPA has previously stated that the rule is justified even in light of its costs, I believe there is a strong case for remand without vacatur.

    2. We do not yet know how EPA will or should take costs into account in revisiting the issue of whether to regulate power plants under section 112. The Court left this matter to EPA, with the qualification that the agency's treatment of costs must be, "[a]s always, within the limits of reasonable interpretation." The Court emphasized that it was not holding that the agency must conduct "a formal cost-benefit analysis in which each advantage and disadvantage is assigned a monetary value." Beyond that, the Court gave little hint of the kind of analysis it would approve. At times, it seemed to be looking for a judgment about whether costs were disproportionate to benefits; at other points, it seemed to highlight cost-effectiveness analysis. These are different inquiries, and it will now be up to EPA – at least in the first instance – to decide which of several cost-sensitive frameworks to use. My sense from the Court's opinion is that as long as EPA considers costs in some fashion, whether through formal cost-benefit analysis or something far more qualitative, it will be sufficient.

    3. We do not yet know which benefits EPA may consider for purposes of the additional analysis the Court has required. Although EPA conducted a formal cost-benefit analysis of the rule for purposes of White House regulatory review, and that analysis included billions of dollars in "ancillary" benefits due to reductions in air pollutants not covered by the air toxics program, the Court did not decide whether these ancillary benefits may be included in the analysis yet to come. That is, the Court said, "a point we need not address." Several justices seemed skeptical of these benefits at oral argument, and there is some (small but discernible) textual basis for excluding them. A number of commentators have argued that EPA must be able to consider such benefits because they are included in standard economic practice and because an OMB circular on cost-benefit analysis, dating from the George W. Bush administration, admits them in the cost-benefit framework. I don't think economic practice and an OMB circular will decide this question, but I do think it would be quite aggressive for a court to tell EPA which regulatory benefits count.

  • June 26, 2015
    Guest Post

    by Erwin Chemerinsky, Dean of the School of Law, Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    The Supreme Court’s decision upholding a right to marriage equality for gays and lesbians surprised no one, but that makes the victory for liberty and equality no less important. Two years ago, the Supreme Court, in United States v. Windsor, declared unconstitutional a key provision of the federal Defense of Marriage Act. Justice Kennedy wrote for the Court, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. The Court held that there was no legitimate purpose served by the federal government refusing to recognize same sex marriages.

    Virtually every lower court, except for the United States Court of Appeals for the Sixth Circuit, interpreted Windsor as providing a basis for invalidating laws prohibiting same sex marriage. As a result, as the Supreme Court considered the issue, marriage equality existed in 37 states and the District of Columbia. The issue before the Court was less about whether to extend marriage equality and more about whether the Court would take it away from all of the states where it existed by virtue of Court decisions.

    Ultimately, the Supreme Court’s decision reflects that there is no legitimate government purpose served by denying gays and lesbians of the right to marry. A history of discrimination never is enough to justify current discrimination. The argument based on procreation was silly.  Gay and lesbian couples will procreate – by adoption, surrogacy, and artificial insemination – whether they can marry or not. Their children should be able to benefit from marriage, the same as children of heterosexual couples.

    The Court’s decision will be regarded as a historic landmark for advancing equality and liberty. It is the Court playing exactly the role that it should in society:  protecting those who have been traditionally discriminated against and extending to them a right long regarded as fundamental.

  • June 26, 2015
    Guest Post

    by Lisa Heinzerling, the Justice William J. Brennan, Jr., Professor of Law, Georgetown University Law Center

    The Supreme Court's decision in King v. Burwell is, of course, most important for its central holding that the Affordable Care Act's federal subsidies are available even on federally established health exchanges. The decision preserves health insurance subsidies for millions of people who have begun to benefit from them and avoids the ridiculous spectacle of taking the subsidies away based on four words ("established by the State") in a lengthy and complicated statute.

    But for those who, like me, are not health care experts but teach and write in environmental law, the majority opinion by Chief Justice Roberts is principally worth studying for its approach to statutory interpretation. Especially for those following EPA's impending regulation of greenhouse gases from power plants under section 111 of the Clean Air Act, which has already drawn attacks based on a purported lack of statutory authority, the Court's opinion in King v. Burwell strikes some familiar (and possibly unpleasing) chords.

    First, the Court in King v. Burwell declined to apply the two-step Chevron framework. The Court did not say the Affordable Care Act is clear, and therefore Chevron deference doesn't apply. It did not say the Affordable Care Act is not clear, and therefore Chevron deference applies if the agency's interpretation is reasonable. These would have been the two standard moves for the Court to make. Instead, the Court simply held Chevron inapplicable. Granted, the Court did not – as the Reporter's headnote did – come out and baldly say "Chevron does not provide the appropriate framework here" (slip op. at 2). And granted, the Court pitched its language on Chevron in terms of "reason to hesitate" rather than outright rejection. But after explaining why this was an "extraordinary case" in which the Court has "reason to hesitate," the Court moved into its very own interpretation of the statutory provision at issue. The Court read the statute straight up, as it were, with no deference, or even subsequent reference, to the agency's thoughts on the matter.