As contributor to an amici curiae brief in SCOTUS National Federation of Independent Business v. Sebelius and having strategically led certain Massachusetts healthcare reform stakeholder and nonprofit organizations in that process, I deciphered and analyzed the legal underpinnings of Chief Justice John Roberts’ landmark 2012 decision. See http://www.supremecourt.gov/opinions/counsellistview/cl567-2; http://iris.lib.neu.edu/slaw_fac_pubs/52/. See also https://www.law.cornell.edu/supremecourt/text/11-393 (The Honorable Justice Ginsburg’s dissenting opinion cited to the Amici Curiae Brief of Health Care For All, Inc., et al, in support of petitioners' arguments regarding the Commerce Clause and Congressional authorization to enact the minimum coverage provision). But, that was June 28, 2012.
Presently, another significant constitutional challenge to a provision under the Patient Protection and Affordable Care Act (ACA) remains unresolved. Next month or so, SCOTUS King v. Burwell will interpret and ultimately may hold accountable the policymakers and federal agencies for the long term ramifications of their actions -- implications which could significantly affect federal health care reform. Or, perhaps not. The Court after all could examine standing and, therefore, injury in fact under U.S. Constitution Article III, which governs cases and controversies. In addition, it is unclear why legislative action would not have been able to modify -- or could not prospectively modify -- any deficit in the ACA's explicit statutory language, which restricts federal tax subsidies to Exchanges “established by the state."
We are fully informed that King v. Burwell poses another critical challenge to the ACA. The Internal Revenue Service’s premium subsidies are accorded to eligible, moderate-income and lawfully residing U.S. tax filers, pursuant to 26 C.F.R. § 1.36B-2(a)(1). Approximately 38 states have opted to forgo state-driven Exchanges under the ACA and yielded authority to the federal government to establish Exchanges, which provide healthcare access and coverage for their residents. Thus, the implications of a SCOTUS decision for the plaintiffs would necessarily impact employer and individual mandates -- and corresponding federal tax penalties. Although the minority of states, such as the Commonwealth of Massachusetts, would not be directly impacted by the SCOTUS opinion, the potential consequences on the federally-run Exchange states would have broader, national implications. All of this assumes that the plaintiffs do not lack standing under Lujan v. Defenders of Wildlife, 112 S. Ct. 2130 (1992), and related federal case law. In any event, SCOTUS will consider Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) and whether the agency interpretation of the statute is ambiguous but reasonable and consistent with Congressional intent – a presumption of deference would apply.
Intrigued by the oral arguments, briefs, and constitutional challenges in this upcoming SCOTUS decision? Join the Health Law Section on Fri., June 12th (8:30 a.m. - 2:30 p.m.) for our 2015 Health Law Conference from 8:30 a.m. – 2:30 p.m. Distinguished professors Mary
Ann Chirba, J.D., Sc. D. & M.P.H., and Alice A Noble, JD, MPH, of Boston
College Law School, and Abigail Moncrieff, J.D., of Boston University School of Law, will offer their legal reflections and insight and will allow in-person attendees and real time viewers to engage in Q&A. We look forward to seeing you at the Conference. Registration is open: http://access.massbar.org/events/eventdescription/?CalendarEventKey=e23f7da5-e0a4-4793-9174-f011b4a28218&EventTypeKey=&Home=/events/upcomingevents/
Lorianne M. Sainsbury-Wong
MBA Health Law Section, Chair
Health Law Advocates, Inc.
Litigation Director and Compliance Atty.