Affordable Care Act Litigation Update

The Patient Protection and Affordable Care Act (PPACA) was signed into law by President Barack Obama on March 23, 2010.  Since the PPACA’s enactment, a number of states and interest groups have filed lawsuits challenging the PPACA’s constitutionality.

While lawyers went to work challenging the PPACA’s constitutionality in Federal Court, some members of the Ohio House of Representatives went to work challenging the new law in their own special way.  State Representatives Adams, Amstutz, Blair, Combs, Mecklenborg and Wachtmann introduced House Bill 11 on January 11, 2011.  Under House Bill 11, an Ohio agency or department is not to comply with the PPACA unless two conditions are satisfied.  First, the department or agency must submit a report to the General Assembly about the provision of the PPACA with which the department or agency must comply.  Second, the department or agency is directed to not comply with the PPACA unless the General Assembly provides it with express statutory authority to implement or enforce the given provision of the PPACA.  While this is a creative way to attack the PPACA and ignores a small provision of the U.S. Constitution, Article VI, Section 2 (most of you know of it as the Supremacy Clause), HB 11 has appeared to lose all momentum and has been stuck in committee since its initial introduction.

Local attacks aside, there are four main cases that are currently rumbling through the Federal Courts.  Below is a brief synopsis of each case and my prediction of where this craziness will end:

Florida v. U.S. Department of Health & Human Services — This case was filed shortly after the passage of the PPACA and began with twelve other states in addition to Florida challenging the new law.  Upon becoming Ohio’s Attorney General, Mike DeWine had Ohio added as another state contesting the new law.  Now, the total is up to twenty-six states challenging the PPACA in just this suit alone.  The main issue in this suit is whether the individual mandate, Section 5000A, is constitutional.  The District Court ruled that the individual mandate was unconstitutional and struck the entire law.  The Eleventh Circuit Court of Appeals agreed to an extent.  The Court of Appeals ruled on August 12, 2011, that Congress exceeded its authority by requiring Americans to buy insurance coverage, however, the Court of Appeals reversed the portion of the District Court’s decision that strike the entire law.

Virginia v. Sebelious —  This suit was filed shortly after the passage of the PPACA.  The backdrop of the Virginia lawsuits is a little different than the rest.  The Virginia legislature had pre-emptively passed a state law forbidding any mandate to purchase health insurance.  The District Court ruled in favor of Virginia, finding Congress had exceeded its authority with the inclusion of the individual mandate in the PPACA.  On appeal to the Fourth Circuit, the Court of Appeals threw the state of Virginia out of court.  The decision issued on September 8, 2011, stated Virginia’s state law was nothing more than a “smoke screen for Virginia’s attempted vindication of its citizens’ interest.”  The Court of Appeals essentially passed on the constitutional issues and disqualified Virginia from the suit by ruling the state lacked standing.

Liberty University v. Geithner — Filed hours after the PPACA was signed into law, this is the second lawsuit to be initiated in the State of Virginia.  The issues contained in this lawsuit are very similar to those argued in Virginia v. Sebelious — challenge based upon the conflict between State and Federal law.  The Federal Government moved to dismiss the case and the District Court granted the motion.  The case then went to the Fourth Circuit Court of Appeals.  The Fourth Circuit dismissed the plaintiff (Liberty University) finding that it lacked standing.  Essentially, the thrust of the appeals court’s decision was that the individual mandate is tantamount to a tax.  The appeals court reasoned that because the penalty provisions of the individual mandate have not gone into effect, the lawsuit is premature.

Thomas More Law Center v. Barack Obama — this case was filed not far from home, in the Eastern District of Michigan.  The challenge here was whether Congress had the authority to mandate that individuals had to purchase health insurance and whether the PPACA infringed on the Free Exercise provision of the First Amendment.  The District Court found in favor of the President and Congress stating the PPACA fell within Congress’ Commerce Clause Power (Article I, Section 8, Clause 3).  With regard to the First Amendment challenge, Sections 5000A (e) & (d) of the PPACA already provides for religious exemptions for individuals whose religious beliefs conflict with the practice of purchasing health insurance.  On June 1, 2011, the Sixth Circuit issued its opinion upholding the PPACA.

Where is this all heading?  Most legal experts following the case believe the Supreme Court of the United States will grant certiorari at the beginning of this next term.  Oral arguments are projected to be held in the six to ten months with a decision being issued in October 2012.  Stay tuned for further updates.

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