Health Care Law’s Achilles Heel? A Growing Legal Morass

Achilles death clip art

The Achilles of mythology was a mighty warrior who seemed invincible. It turned out he had a weakness and it was his undoing. According to one version of the legend, the arrow to Achilles’ heel was guided by the god, Apollo, who sought vengeance for the death of his son.

There are a number of well-kept secrets about the health care law, but I think the increasing legal morass has become the most important. “Morass” is a negative word: A growing number of citizens, businesses, and the state of Oklahoma have turned to the court system to seek relief. This means Americans are – or can show they reasonably expect to be – increasingly bogged down (or damaged) by the health care law and attendant reams of regulations and rules promulgated by unelected appointees and bureaucrats. But, if the growing pile of legal problems were responded to proportionally, both in the form of legal challenges and effective pressure, it would be the federal government bogged down – specifically it’s ability to execute the health care law – and less so the citizens. Perhaps then, elected officials and bureaucrats would finally do the obvious, meaning they’d scrap the law and be forced to have a real debate about health care 1 For that turn of events to ever come about, however, the growing legal problems can’t remain a well-kept secret .

What national headlines there have been regarding “ObamaCare”, have focused on the controversy regarding the Obama Administration’s delay of the employer mandate, apparent “buyer’s remorse” by labor unions, and yet-another proposal from some Republicans to “defund ObamaCare” and the predictably round of condescending lectures by GOP card-carrying members of the Ruling Class 2, like Karl Rove.newspaper clip art

Within states, the headlines – if there have been any – mostly cover a retread of the same worn-out debate points from four, three, and two years ago. In some states, the retread is followed by a predictable cave-in by legislators and governors in the form of Medicaid expansion – a health care law provision more than half of the states’ attorneys general sued to block.

Nebraskans can consider the paragraph above as a description of 2013 – 2014 in the Capitol. Unfortunately, we’ll get to rehash the retread before the cave-in occurs…which it will…absent…hmm…spine transplants for the GOP super majority?…divine intervention?

With that in mind, let’s review: while Congressional Republicans tell those who are paying attention to the issue at all, that the ONLY way to “stop ObamaCare” is to focus like laser beams on Congress (again) and await another miracle that will not come, state officials and bureaucrats continue to entangle their states even further in the health care law’s spider web 3. Meanwhile, the few actually effective and viable pathways for protecting citizens from the assured damage, remain largely untapped and even less well known.

Just WHY the legal challenges have been ignored is a subject too lengthy to tackle here. But, just WHY the legal challenges are worthy of attention, is a subject that needs to be addressed. To do so doesn’t require much time, however: I’ll just point to a single, but important truth. Any notion that the Supreme Court ruling in June 2012 was the culmination of a thorough, definitive legal process regarding the 2010 health care legislation, is just plain false. By thorough and definitive, I mean, including, but not limited to, a comprehensive evaluation of all the potential legal issues presented within the text of the health care legislation and careful deliberation regarding what to challenge. There is one key fact that proves there is no way the Attorneys General could have presented a thorough case: the AGs’ lawsuit was filed March 23, 2010. The final, compiled version of the two bills 4 we all refer to as “the health care law” wasn’t released until, at earliest, May 1, 2010. Considering what happened in Congress to, git ‘er done, HOW could the AGs have known in adequate fashion all that the legislation contained or had any time to deliberate?

Is there any wonder that more challenges have been filed? Many issues were necessarily left on the table from the text of the legislation as finalized in May 2010. And there should be additional challenges arising from all those endless streams of regulations and rules flowing out of federal agencies.

Dominoes falling clip art The only things worth wondering about, really, are years of campaign promises, a sea of politicians waving white flags, and what looks like a big dominoes game all set up, then, one after the other, Republican legislators and Governors across the land, with few exceptions, grab federal grant funds as they fall over, one by one, in various ways, actively assisting with or acquiescing to implementation of this law.

What you see, below, and will see in a part two, are enhanced, updated versions of a document I produced in May as part of a research packet. Having now spent days on this subject again, five months later, I’m shocked at the lack of attention, from the media and elected officials. I also think it’s downright bizarre that I’ve compiled more information that is up to date here, than is available within the Wikipedia article on the subject. It’s equally bizarre, that searches of Google’s “News” engine for some of the cases listed below, produces one published news article about them 5

I think it is reasonable to conclude that there exists very little incentive for…anyone with a loud enough megaphone…to make the existence of the growing number of legal challenges filed known to the wider world. As I noted above, just WHY is a subject I’ll have to tackle separately and hopefully, soon.

Recognizing that there is a lot of information here, I’ve been working on providing additional explanation and resources in the form of articles. I’ve already drafted several and at least two are complete. I will add a list of them as time allows. The same applies regarding the status of the issues and cases listed.

IRS Rule

Internal Revenue Service (final) Rule 36B adopted May 2012, regarding tax credits (premium subsidies) and penalties associated with PPACA’s insurance exchanges.

CASE(S) – Status:Oklahoma v. Sebelius, federal government’s motion to dismiss for lack of standing, denied in part, upheld in part, August 12, 2013; pending, awaiting briefing schedule, Eastern District Court of Oklahoma.

Halbig v. Sebelius, Plaintiff Motion for Summary Judgment June 6, 2013, Government motion to defer briefing, June 13, 2013, Plaintiff’s opposition to government’s motion to defer, June 14, 2013, awaiting ruling, D.C. District Court. Competitive Enterprise Institute’s case status page, here.

Basis for challenge:
Challenges to federal government’s authority to deliver tax credits and penalties through federally run insurance exchanges; there is no statutory authority for this rule – the law as written by Congress refers only to state exchanges regarding tax credits and penalties.

Additional information and notes:
The IRS issued a final rule in May 2012, providing for tax credits (premium subsidies) and penalties under both state and federally run insurance exchanges, but, inserted language for federal exchanges which doesn’t exist in the text of the health care law. In the actual text of the final, combined legislation passed by Congress, the sections referring to tax credits (premium subsidies) and penalties only names Section 1311 exchanges – state run exchanges, not Section 1321 exchanges, federally run exchanges.
Oklahoma’s suit is an amended filing, pending during the Supreme Court’s consideration of NFIB v. Sebelius.
The August 12, 2013 order allowing OK to proceed with it’s challenge to the IRS rule, was based primarily on the fact that the state is “an applicable large employer” under PPACA. Note that a challenge based on an amendment to the OK constitution – commonly referred to as a health care freedom act – was dismissed.
As reported by Heartland Institute, plaintiffs in Halbig are represented by Michael Carvin, who co-argued on behalf of the States during Supreme Court oral arguments in March 2012 (NFIB v. Sebelius).

Origination Clause

The origin of the health care law’s penalty provisions, considering the use of the reconciliation process.

CASE(S) – Status:
Sissel v. U.S. Dept. of Health and Human Services, Pacific Legal Institute, federal government’s motion to dismiss for lack of standing, D.C. District Court order to dismiss issued June 28, 2013, notice of appeal filed, July 5, 2013, D.C. Circuit Court of Appeals. Awaiting briefing schedule.
Liberty University v. Geithner; origination clause portion of suit was dismissed and not appealed to date.
Basis for challenge:
Following the Supreme Court ruling that the health care law’s penalty is a tax, the claim now challenges the law on the basis that the tax is illegal because it was introduced in the Senate and not the House, required by Article I, Section 7 of the U.S. Constitution.Additional information and notes:
Sissel v. H.H.S. is an amended complaint originally filed as a challenge to the individual mandate, but held while Supreme Court had the NFIB v. Sebelius and Florida v. H.H.S. cases. Pacific Legal Institute’s status page, here.Liberty University v. Geither origination challenge portion of case was apparently dismissed because plaintiffs didn’t raise the issue at the proper stage of the case, but see “Employer Mandate” and “Contraception Coverage”, below.

Employer Mandate

The health care law requires all employers with 50 or more full-time (30 or more hours per week) to provide a “qualified health insurance plan” with “minimum essential benefits” to eligible employees, or pay penalties.

CASE(S) – Status:
Liberty University v. Geithner – now Liberty University v. Lew, Liberty Counsel, Ruling, July 11, 2013, the employer mandate falls under Congress’ Commerce Clause authority, but, federal government overruled on motion to dismiss for lack of standing or lack of jurisdiction under Anti-Injunction Tax Act, Stay order prohibiting implementation of mandate, granted, August 6, 2013, based on intent of plaintiffs to file for a writ of certori with the United States Supreme Court; Stay order prohibiting implementation of mandate, reversed August 7, 2013, Fourth Circuit of Appeals. Pending filing with Supreme Court, due in early October. (See also “Contraception Coverage”)
Basis for challenge:
Plaintiffs content that Congress does not have the authority to require employers to provide health insurance for their employees or face penalties. Further, forcing Christian employers or employees to participate in a government program that funds abortion services or abortion-inducing drugs, violates multiple Constitutional protections for the free exercise of religion. See also “Contraception Coverage”, below.

Additional information and notes:The Fourth Circuit Court of Appeals dismissed the Liberty suit in 2011, primarily for lack of jurisdiction under the Anti-Injunction Tax Act, which prohibits litigation on taxes until they’ve gone into effect and an established protest procedure is followed and exhausted. The U.S. Supreme Court granted a writ by plaintiffs on November 26, 2012, vacating the dismissal order of the Fourth Circuit Court of Appeals, and remanded the case back to that court in light of the NFIB v. Sebelius ruling of June 28, 2012. Following the July 2 Treasury Notes blog post announcing a one year delay of the employer mandate, the Department of Justice filed a letter with the appeals court arguing that “Liberty v. Geithner was moot and should be dismissed”. Liberty Counsel, plaintiffs’ attorney, explained these events in an article on Canada Free Press and filed a response.

Independent Payment Advisory Board (IPAB)

CASE(S) – Status:
Coons v. Geithner, Goldwater Institute, numerous counts dismissed, August 31, 2012, based on ruling in NFIB v. Sebelius, further claims deemed “unripe” and so dismissed, December 20, 2012, District Court of Arizona; appeal filed May 30, 2013, Brief by federal government filed July 30, 2013, brief by Coons filed August 14, 2013, awaiting schedule for oral arguments, Ninth Circuit Court of Appeals
Basis for challenge:
Powers granted to this politically appointed board – one board member can be a quorum – are beyond Congress’ authority; usurps powers of the legislative, executive, and judicial branch, which violates the “separation of powers” doctrine, and violates the , , and .Additional information and notes: Goldwater Institute’s Coons v. Geither case status page, is the most comprehensive repository for case documents I’ve seen – all case filings to date are linked as far as I can tell, here.
Some Congressional hearings have been conducted regarding IPAB. Congressman Kevin McCarthy, the Minority Whip, published the document “Organizations Supporting the Repeal of IPAB” in PDF format.

Additional reading:

Contraception Coverage

Employer’s requirement to provide “qualified health care plans” with “minimum essential benefits” means employers must subsidize coverage for contraceptives, abortifacients (“morning after” and “week after” pill), and sterilization procedures.

CASE(S) – Status:

Too many to list in detail; according to one source, 73 challenges have been filed on this issue as of August 29, 2013. Cases listed here are representative and/or important.

Hobby Lobby Stores, Inc. v. Sebelius, Becket Fund, Remand back to District Court (was in error), June 27, 2013, Tenth Circuit Court of Appeals, Temporary restraining order granted, June 28, 2013, Western District of Oklahoma, Preliminary injunction against government enforcement of the contraception coverage requirement granted, July 19, 2013, Proceedings stayed until October 1, 2013, and District Court awaits federal government’s decision regarding potential appeal of the Tenth Circuit June 27, 2013 decision, Western District of Oklahoma. Conestoga Wood Specialties Corp. v. Sebiulus: Preliminary injunction request denied, January 11, 2013, Eastern District of Pennsylvania; Oral arguments appeal, May 30, 2013; Injunction request denied, July 26, 2013, Third Circuit Court of Appeals, prospect for appeal unclear as of date of publication. Priests for Life v. H.H.S., Complaint re-filed August 19, 2013, D.C. District Court Ave Maria v. Sebelius, et al, re-filed August 29, 2013, Middle District of Florida, Ft. Meyers Division.

Nebraska, et al v. H.H.S., Motion to dismiss granted for lack of standing and jurisdiction, District Court of Nebraska, May 2012

Basis for challenge:
Requiring employers with sincerely held religious beliefs regarding the use of contraceptives, sterilization procedures, and/or abortifacients, to procure and subsidize coverage for employees for those services and/or substances, violates the Religious Freedom Restoration Act of 1993 and employers’ rights as recognized in the Constitution’s First Amendment free exercise of religion provision. Some plaintiffs cite additional violations of Constitutional provisions. Some suits have been amended or re-filed, if previously dismissed (see “Additional Information and Notes”), renewing the same bases. Additional information and notes:Hobby Lobby v. Sebelius seems to be a particularly important case for several reasons. Other courts with cases filed on this issue are largely following rulings in Hobby Lobby.
The June 27, 2013 order to remand the case back to District Court by the Tenth Circuit Court of Appeals, noted that Hobby Lobby has standing to sue, that a violation of the Religious Freedom Restoration Act is likely and that Hobby Lobby did face imminent harm if a temporary restraining order wasn’t granted by July 1, 2013, the date on which coverage requirements were to go into effect. Note that some of these cases were dismissed in 2011 and 2012, due to lack of standing, lack of ripeness, or because the Obama Administration announced pending changes to policy.
The health care law’s provisions, coupled with rules promulgated, provide for significant fines, calculated per employee, for any employer who refuses to provide contraceptives under “minimum essential benefits” requirements. For instance, Hobby Lobby would face fines of $1.3 million per day if the company refused to provide the required coverage. Following mounting pressure, and increasing numbers of legal challenges, the Administration announced an “accommodation” policy, but, newly filed claims by such entities as Ava Maria University, contend that those agencies have crafted or are construing the new “accommodation” so narrowly that many entities and individuals will still be subjected to making the choice between adhering to their religious beliefs or paying hefty fines.To date, 26 plaintiffs have been granted injunctions by district and circuit courts, meaning they don’t have to comply with the mandate while their cases proceed.
6 plaintiffs had preliminary injunction or temporary restraining orders requests denied by various courts, while the remaining balance of cases have not involved such requests and/or been dismissed for procedural reasons or haven’t moved through the process.
The Becket Fund, the legal foundation representing Hobby Lobby and others, has “HHS Information Central”, which lists, among much other information, the names of the entities granted (or not) preliminary injunctions and restraining orders.
Conestoga v. Sebelius provides an example contrast outcome to Hobby Lobby and the 25 other cases where temporary restraining orders and/or preliminary injunctions have been granted. Note that more restraining orders and injunctions have been granted, by far, than have been denied, among cases still active.
Nebraska v. H.H.S. was filed by Nebraska Attorney General Jon Bruning, but the event occurred with little notice. Mr. Bruning was a candidate in the GOP U.S. Senate primary 6 at the time, campaigning on “I led the charge against ObamaCare”, citing the 26 state Attorneys General lawsuit argued before the Supreme Court, March 2012, not the Nebraska v. H.H.S. case. The group of plaintiffs included several states and Lincoln-based Catholic entities and individuals with various challenges aimed at the contraception, abortifacients, and sterilization procedures coverage requirement.

Additional reading:

  • The Becket Fund, law firm for Hobby Lobby, Wheaton College, Ave Maria University, and others who’ve filed suits challenging the contraception coverage requirement, has extensive status information on almost all of the cases filed (67 / 73) on their website, here.
  • The National Women’s Law Center has slightly more up to date information on all known cases, than the Beck Fund, however, see footnote 7 for words of caution regarding this reference. “Overview of the Lawsuits Challenging the Affordable Care Act’s No Cost-Sharing Contraceptive Coverage Benefit” dated August 19, 2013. THIS webpage appears to be the repository for updates.

BUT, this is not all…

As I noted above, there is a part two. The list above reports about active cases. In part two, I report about several important potential issues which could produce more litigation challenging the health care law or, as I’ll detail in that follow-up, action or inaction by state government officials pertaining to the implementation of the law within states.

Images & Graphics Sources
The images and graphics in this article were obtained from the following sources:

“Achilles’ death”  and “internet news reader” from clker.com

Dominoes from freeclipart.net

Footnotes, References & Citations

Notes:

  1. When I reference a “real debate about health care”, I do mean to say that for this issue, saying no is not adequate. Our health care economy is broken and the status quo cannot stand. The real issue is not disagreement regarding whether the system is broken, the disagreement is about how to fix it.
  2. By labeling Karl Rove as a “card-carrying member of the Ruling Class”, I’m specifically referring to a definition in a work mentioned in GiN articles so many times before: Angelo M. Codevilla’s essay, “America’s Ruling Class and the Perils of Revolution”. For Mr. Rove, I added the additional modifier “GOP”, to acknowledge his unique role as apparent ongoing architect of Republican Party establishment policy. For an analysis of Nebraska state level politics using Codevilla’s description of the political landscape, see our work “Nebraska’s Ruling Class and the Perils of (Assisted) Political Suicide”.
  3. Earlier in this article, I referred to state legislators’ and governors’ efforts to expand their Medicaid programs. In addition to that active assistance in implementing the health care law, governors and legislators have entangled their states further in various ways through actions regarding insurance exchanges. While these two health care law elements are related, they do constitute individual elements.
  4. What we all refer to as “the health care law” was actually two bills; The Patient Protection and Affordable Care Act of 2010 and a huge set of amendments + federal take over of student loans, The Health Care and Education Reconciliation Act of 2010. The final, compiled version, is marked “As amended through May 1, 2010″ and dated June 2010, and is as “readable” a copy of the legislation as is available, because it includes changes made by the Reconciliation Act.
  5. Note that my search of Google News was for the actual names of cases, meaning I used the standard convention adopted by the court systems and news outlets. For instance, if I were to search for news stories about the Supreme Court cases ruled on in June 2012 regarding the health care law, I’d search for NFIB v. Sebelius. Further, Google News is different from the main Google search engine; the main engine pulls in results from across the internet, including blog posts, images, videos, etc.
  6. Jon Bruning was one of five candidates in the GOP primary race and was widely considered the favorite of the NEGOP leadership. Other candidates were State Treasurer Don Stenberg, Pat Flynn, retired investment adviser and insurance broker from Schuyler, Spencer Zimmerman, whose general engagement in the campaign was minimal, and, Valentine State Senator Deb Fischer, who won the primary and went on to defeat Democratic candidate, former Nebraska U.S. Senator and Governor, Bob Kerrey in the General Election in November 2012.
  7. A note of caution: National Women’s Law Center supports abortion on demand, homosexual “rights”, etc. While NWLC’s information seems accurate and up-to-date regarding litigant names, in providing links to documents, dates of actions in cases, etc., my examination of explanatory information provided many skewed statements which lack full disclosure of facts to readers.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Source: Bill of Rights Transcript, Archives.gov

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Source: Bill of Rights Transcript, Archive.gov

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Source: Bill of Rights Transcript, Archive.gov

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