Supreme Court Roundup Part Two: King v. Burwell

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Category: Constitutional Law, Health Care, Judges & Judicial Process, Marquette Law School, Public, U.S. Supreme Court
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Obama_signs_health_care-20100323On October 5, I participated in an event at the Marquette University Law School entitled “Supreme Court Roundup” with Cato Institute Scholar Ilya Shapiro.  The event was sponsored by the Law School Chapters of the Federalist Society and the American Constitution Society.  A previous post contained my remarks on Obergefell v. Hodges (the “Gay Marriage case”).  What follows are my prepared remarks on King v. Burwell (the “Obamacare case”).

The issue in this case was whether the Affordable Care Act’s tax credits are available in States that have a federal health insurance exchange rather than a state exchange. In Section 36A, the Affordable Care Act (commonly known as “Obamacare”) states that tax credits “shall be allowed” for any “applicable taxpayer.” Then, in Section 36B, the Act provides that the amount of the tax credit depends in part on whether the taxpayer has enrolled in an insurance plan through “an Exchange established by the State.” (emphasis added).

In King v. Burwell, the U.S. Supreme Court, in an opinion written by Chief Justice John Roberts, held that Section 36B allows tax credits to be used for insurance purchased on any exchange created under the Act, including insurance purchased on a federal exchange.

I want to be clear.  I make the following statement with the intent to be as objective and non-partisan as possible.  This litigation was nothing more than a post hoc attack on the Affordable Care Act, using one isolated provision of the law read out of context in order to arrive at a nonsensical meaning, which then used a manufactured theory of legislative intent – a theory without a shred of contemporaneous support in the legislative history – in a desperate attempt to prop up the nonsensical meaning.

The background of how this case arose is illuminating. Read more »

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In Eckstein Hall Session, Schimel Emphasizes Fight Against Opiate Drug Abuse

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Category: Health Care, Public, Speakers at Marquette, Wisconsin Law & Legal System
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Drug overdose deaths don’t usually make big headlines. But ask Brad Schimel about his priorities as Wisconsin’s still quite-new attorney general (he took office in January) and they are at the top of his priorities. Here’s a powerful reason why:

More people die each year in Wisconsin from overdoses of opiate drugs, the kind issued through prescriptions at drug stores, than die from breast cancer, traffic accidents, hand guns, or heroin combined, Schimel said during an “On the Issues with Mike Gousha” program at Eckstein Hall on Sept. 23.

Seventy percent of heroin addicts got addicted to prescription pills first, Schimel said, and seventy percent of the prescription drug addicts got pills from friends or family members, Schimel said.

Schimel announced in mid September a campaign called “A Dose of Reality” to increase awareness of the extent of prescription drug abuse in Wisconsin. He said the medical community of the state was cooperating in promoting education and more precautions not only in the general public, but in medical jobs that involve providing such drugs. Many in the medical sector are not aware of how widespread the problems of abuse are. Schimel said in announcing the campaign.

Schimel told Gousha he met many times with families of those who died of such abuse while he was Waukesha County district attorney, his job before becoming district attorney. He said it was myth that those who died were “bad kids.” Schimel said, “I’ve yet to find a parent who had the bad kid. These are good kids.” They came from a wide range of backgrounds and lifestyles. And those who die, in general, come from all parts of the state, rural, suburban and urban, and grew up in homes across the spectrum of income levels, he said.

The Dose of Reality campaign is aimed at promoting drug treatment and effective law enforcement work, as well as public education.

In his conversation with Gousha, the Law School’s distinguished fellow in law and public policy, Schimel also touched on other issues the attorney general’s office is facing.

He agreed that there appear to be conflicting provisions in federal rules related to whether Wisconsin can require people who receive public aid to purchase food to undergo drug tests. Republicans in the Legislature passed such a law this year, but it is being challenged in court.

“Ultimately that’s what courts do, they decide when there is a conflict of laws,” Schimel said. “We’re going to have this resolved there.”

Schimel also stood by his firm position on maintaining Wisconsin’s strong record of open government and access to public records. Schimel, who won office as a Republican, said sometimes it is necessary to go against the wishes of Republican law makers. In this instance, some Republicans tried to push through substantial changes in open government rules several months ago. Schimel’s opposition was a factor in those changes being pulled off the table after initially getting support.

Schimel also discussed Wisconsin’s participation in fighting tighter air pollution laws backed by the Obama administration and the slow start to a planned joint state-county-city effort to crackdown on gun crimes in Milwaukee. He commented in general terms on the John Doe investigation related to campaign activities on behalf of Gov. Scott Walker, but he did not give a direct answer to a question on whether he thought Milwaukee County District Attorney John Chisholm engaged in a “witch hunt,” as some Republicans have said.

Video of the one-hour program may be watched by clicking here.

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ObamaCare Upheld . . . Again

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Category: Health Care, Judges & Judicial Process, Public, U.S. Supreme Court
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1024px-William_Hogarth_004Today the U.S. Supreme Court announced its decision in the widely anticipated case of King v. Burwell, ruling that the language of the statute authorizes tax credits for individuals who use health insurance exchanges set up by the federal government as opposed to the states.  The result of the ruling is that the Affordable Care Act continues to operate and that millions of previously uninsured Americans will continue to receive health insurance under ObamaCare.  Many observers had predicted an adverse ruling from the Court, and a period of uncertainty (if not chaos) if the use of federal health insurance exchanges was struck down.  Today’s ruling by the Court means that there will be no disruption in the workings of the Affordable Care Act.  Coupled with this week’s passage of “fast track authority” for a Pacific trade bill, the ruling also cements a record of legislative accomplishment for President Obama that will add to his legacy.

Somewhat surprisingly, the Court voted 6-3 in favor of the Administration’s proffered reading of the statute.  Some observers had predicted a narrower margin.  Chief Justice John Roberts wrote the opinion for the majority.  The Chief Justice’s opinion also was crucial in upholding the Affordable Care Act in the NFIB v. Sebelius case in 2012, and it therefore appears that future historians will inevitably evaluate John Roberts’ career as Chief Justice in light of his prominent role in the survival of ObamaCare. Read more »

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Predicting King v. Burwell: This Term’s Most Consequential SCOTUS Case

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Category: Health Care, Public, U.S. Supreme Court
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I am just going to come out and say it:  I have been a long-time proponent of universal, single-payer style heath care for our nation. I am a firm believer that private insurance companies should play no role whatsoever in the provision of health insurance for Americans. It is for this reason that I was so dismayed when President Obama proposed a health care reform regime with the existing private health insurance infrastructure (and Medicaid) as its foundation. I was even among those political wonks who wanted Congress to vote down the Affordable Care Act (ACA) once it became apparent that the ACA exchanges were not going to offer a “public option” to exchange participants. In the years since the law’s passage, I have become an ardent supporter of the law because it is moving our nation in the direction of universal health insurance coverage.

As a law student and constitutional law scholar, I am surprised that the Supreme Court opted to take King on appeal. By the time SCOTUS granted certiorari, the circuit split had been resolved by an en banc ruling of the DC Circuit. What is more troubling is that the petitioners do not appear, by any objective standard, to have standing to bring this suit. Standing is a concept that all first year law students are well acquainted with; it is equally obvious that the petitioners have suffered no judicially cognizable injury by operation of the IRS regulation interpreting the exchange subsidies as applicable to state-run and federally-run insurance exchanges. I have read the petitioners’ standing argument — it is so ridiculous that it does not bear recital here.

Even if one is able to get past the standing issue, an interpretation of the challenged statutory language that petitioners claim limits the availability of subsides to state-run insurance exchanges runs contrary to the canons of statutory interpretation. A comprehensive law that regulates the health insurance system of an entire nation and affects a good portion of our nation’s economy should not hinge on the meaning of a term that is ambiguous in isolation, but definite and decisive when taken in the context of the statute. The term “state,” as used in the ACA, has a broad meaning that encompasses “state” in the scholarly sense of a nation-state and the customized meaning of “state” as a sub-national unit of government.

There are many moral and political arguments that one can make in favor of upholding the decisions of the DC and Fourth Circuits. As a law student writing from a legal perspective, I put these arguments to the side. What is unfortunate for the four (or more) members of the Supreme Court who voted to take up this silly challenge is that the law (and precedent) is not on their side. I predict that the Supreme Court will uphold the decisions of the DC and Fourth Circuits on a 5-4 vote, with Chief Justice Roberts joining the court’s four moderate justices.

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Vaccination Uproar

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Category: Family Law, Health Care, Public

MeaslesDuring the past month, the American public has been bombarded with news reports about a continuing measles epidemic, as well as an extensive debate about whether measles vaccinations should be required to stop this epidemic and prevent future ones from developing.

In fact, all states require vaccinations against many contagious diseases, including measles. But there are exceptions, and the exceptions are broader in some states than others. Only a handful of states limit exceptions to medical necessity – for example, a child whose immune system is compromised by chemotherapy should not receive immunizations. Most states allow religious exemptions, so parents who are, for example, Christian Scientists need not vaccinate their children in contravention of their religious beliefs. However, about a third of the states, including Wisconsin, also allow much broader exemptions based on “conscience” or “philosophical reasons.” These broader exemption categories often can be invoked with little or no effort on a parent’s part, such as by checking a box on a form and signing it, and thus have the potential to erode the requirement if enough people choose not to vaccinate.

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Supreme Court Roundup Part Three: Harris v. Quinn

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Category: Constitutional Interpretation, Constitutional Law, First Amendment, Health Care, Labor & Employment Law, Public
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the american twins 2On October 30, I participated in a presentation entitled “Supreme Court Roundup” with Ilya Shapiro of the Cato Institute.  The event was sponsored by the Law School chapters of the Federalist Society and the American Constitution Society.  We discussed three significant cases from the 2013-2014 Supreme Court term: McCutcheon v. FEC, Burwell v. Hobby Lobby and Harris v. Quinn.  It was a spirited discussion, in which Mr. Shapiro and I presented opposing views, but I want to thank Mr. Shapiro for taking the time to visit the Law School and for sharing his perspective with the students.

This is the third and final blog post on the presentation.  Readers can find the first post here, and the second post here.  What follows are my prepared remarks on Harris v. Quinn, and also a brief conclusion regarding the three cases.  Readers interested in Mr. Shapiro’s position on the case can refer to the amicus brief that he filed on behalf of the Cato Institute.

The case of Harris v. Quinn involved an Illinois law that made home health aides state employees under the Illinois Public Labor Relations Act.  As a result of this law, these workers became joint employees of both the private individual who receives the services of the home-health worker and the State of Illinois.  The Service Employees International Union (SEIU) represents home health aides under a contract with the State of Illinois and collects mandatory dues from both union and non-union workers, which are called “agency fees.”  Persons who have a negative view of organized labor object to agency fees because they compel people to pay money to an organization to which they do not belong.  Persons who have a positive view of organized labor support agency fees because they prevent non-union employees from “free riding,” which occurs when non-union employees receive the benefits of union-negotiated employment contracts without contributing to the cost of negotiating them.

Under existing precedent, a government employer who collects agency fees from non-union members does not violate their First Amendment rights because when the government acts as an employer it has a compelling interest in avoiding conflicting demands for wages and employment conditions from competing groups of employees.  Abood v. Detroit Board of Education (1977).  The plaintiffs in the Harris case wanted to use their lawsuit to overturn the Abood decision, thereby allowing any government employees who are not union members to work for the government without paying agency fees to a public employee union.  Read more »

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Supreme Court Roundup Part Two: Burwell v. Hobby Lobby Stores, Inc.

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Category: Business Regulation, Constitutional Law, Corporate Law, First Amendment, Health Care, Public, Religion & Law, U.S. Supreme Court
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the bosses of senateOn October 30, I participated in a presentation entitled “Supreme Court Roundup” with Ilya Shapiro of the Cato Institute.  The event was sponsored by the Law School chapters of the Federalist Society and the American Constitution Society.  We discussed three significant cases from the 2013-2014 Supreme Court term: McCutcheon v. FEC, Burwell v. Hobby Lobby and Harris v. Quinn.  It was a spirited discussion, in which Mr. Shapiro and I presented opposing views, but I want to thank Mr. Shapiro for taking the time to visit the Law School and sharing his perspective with the students.

This is the second of three blog posts on the presentation.  Readers can find the first post here.  What follows are my prepared remarks on Burwell v. Hobby Lobby.  Readers interested in Mr. Shapiro’s position on the case can refer to the amicus brief that he filed on behalf of the Cato Institute.

The legal issue in Burwell v. Hobby Lobby Stores can be described simply.  Under the provisions of the Affordable Care Act, the Department of Health and Human Services requires employers to provide health insurance plans making contraception available to their female employees at no cost.  In the NFIB v. Sebelius decision in 2012, the Supreme Court upheld Congress’ power to pass the Affordable Care Act as an exercise of its taxing power.  But even if Congress has the power to pass the law, can a for profit corporation nonetheless avoid following the law by arguing that the contraception provisions burden the corporation’s free exercise of religion in violation of the Religious Freedom Restoration Act (RFRA)?

The rights of the individual shareholders that own the corporation were not at issue.  The law does not act on the individuals, and does not require these human beings to do anything.  The only legal requirement imposed by the law is imposed on the corporate entity.

So what did Congress intend to do when it passed RFRA in 1993?  As I will explain, the Hobby Lobby case presents two opposing views as to what Congress attempted to accomplish by passing that law.  The dissent by Justice Ginsburg argues that the intent of RFRA was to create a statutory remedy for burdens on religious expression that adopted the standard for evaluating First Amendment violations prior to the 1990 Employment Division v. Smith case. The majority opinion by Justice Alito argues that by passing RFRA Congress created a statutory remedy that protected more “persons” than the pre-Smith caselaw protected and that granted them greater protections than the pre-Smith caselaw granted. Read more »

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Big Tobacco Sues Uruguay

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Category: Business Regulation, Health Care, Public

fda cigarette warning lungsThose who follow efforts to use law to reduce smoking will be aware the United States Court of Appeals for the District of Columbia found in R.J. Reynolds v. FDA, 696 F.3d 1215 (D.C. Cir. 2012) that mandatory graphic imagery on cigarette packs was a violation of commercial speech rights. As a result of the decision, cigarette packs continue to have only prosaic warnings, which go not only unread but also, for the most part, unnoticed.

Foreign countries, of course, are not bound by U.S. law, and Uruguay forged ahead with its own laws requiring graphic warnings. They include photos of decaying teeth, premature babies, and disturbing hospital scenes, with each picture covering 80 percent of each pack. Big Tobacco cannot invoke its commercial speech rights in Uruguay, but Philip Morris has sued Uruguay for $25 million, alleging the required warnings violate treaties protecting intellectual property rights.

The case is in the courts, with former New York City Mayor Michael Bloomberg paying many of Uruguay’s legal costs. Smoking is on the rise in developing countries, and many think the decision in Uruguay will have significant impact on other developing countries’ willingness to require graphic warnings.

For my own part, I strongly endorse the required graphic warnings in the name of social justice. Smoking in both the United States and abroad is increasingly concentrated among poor and working-class men and women, and the health problems associated with smoking are also greater in these sectors of the world population. For the poor and members of the working class, reading skills and even any interest in written texts are limited, but poor and working-class smokers are aware of and receptive to visual imagery. If they could literally see what smoking causes, they might fight harder to break their deathly, addictive habit.

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US Supreme Court Review: Two Employee Benefit Cases (Dudenhoeffer and Hobby Lobby)

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Category: Business Regulation, Corporate Law, Health Care, Labor & Employment Law, Public, U.S. Supreme Court
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US Supreme Court logo(This is another post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term.) This blog post is the third of three on labor and employment law cases by the United States Supreme Court in the last Term. This post focuses on two employee benefit law/ERISA cases: Fifth Third Bancorp v. Dudenhoeffer and Burwell v. Hobby Lobby Stores, Inc. First, a disclosure: Along with six other law professors, I co-wrote an Amicus Curiae brief in support of the Dudenhoeffer plaintiffs.

Dudenhoeffer involves so-called ERISA stock-drop litigation, which has been rampant in the federal courts for a couple of decades now. The basic formula of these cases is that, as part of the employer-sponsored retirement plan (whether an employee stock ownership plan (ESOP) or a participant-directed 401(k) plan), the employer offers its own stock as either the entire pension plan investment or part of the pension plan investment.   When the company goes south and its stock price falls, plan fiduciaries find themselves in a difficult position as far as whether to sell the stock or to hold on to it. This is especially so when the plan fiduciary has conflicting duties as an officer of the company and as a fiduciary of the plan. As a corporate officer, not only is the person supposed to act in the best interests of shareholders to maximize the value of the company, but securities law forbids them to trade stock based on non-public material information. As a fiduciary to the ESOP or 401(k) plan, ERISA gives that same person an obligation to act in the best interest and with the same care as a prudent fiduciary would when making decisions about that employee benefit plan. And in case you are wondering, ERISA Section 408(c)(3) gives employers the ability to assign the same person both officer and plan fiduciary roles or set up so-called “dual-role fiduciaries.” Read more »

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Majority Opinion on “Obamacare” Doesn’t Lie in Either Extreme

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Category: Health Care, Marquette Law School, Public
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As is so often the case, the focus in news reporting on the fresh results of the Marquette Law School Poll, released on Wednesday, was on the race for governor, with Republican Gov. Scott Walker’s lead over Democratic challenger Mary Burke holding steady from the prior round of polling in January. (Walker led 48 percent to 41 percent this time, compared to 47 percent to 41 percent then.)

But there is a lot more in each round of polling, both results that shed richer light on voters’ views related to candidates and voters’ views on issues. Distinguished Fellow Mike Gousha looks at some of the former in his posting on this blog, which can be found by clicking here. Permit me to look at one aspect of the latter, the results related to the new federal health law, often called Obamacare — results which don’t get much time in the spotlight.

Professor Charles Franklin, director of the Marquette Law School Poll, pointed to one of the most interesting results related to health care in his discussion of the results with Gousha on Wednesday. Put simply: There isn’t much political mileage to be gained from being either strongly in favor or strongly opposed to the federal law. What the majority of those who were polled said they want is to keep the new law but improve it. Specifically, only 8 percent want to keep the law the way it is, only 18 percent want to see it repealed and not replaced. But 52 percent want it improved, while another 18 percent said they want it repealed but replaced with an alternative. That’s 70 percent who want a better plan than Obamacare, but still want a federal health care law (presumably in addition to or expanding on Medicare and Medicaid). Read more »

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Legislative Treatment of E-Cigarettes

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Category: Health Care, Public
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In recent months, efforts to subject e-cigarettes to the same laws as traditional cigarettes have swept the country.  The San Francisco Board of Supervisors has unanimously voted to subject the smokeless, tobacco-less cigarette to the same public bans as cigarettes.  Across the country in New Jersey, Governor Chris Christie recently unveiled a new budget plan that will subject e-cigarettes to the same excise tax rate as their tobacco-filled cousins.
So, should e-cigarettes and cigarettes be subject to the same laws?  Read more »
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Zelinsky: Use of HSAs and HRAs as Compromise to ACA Contraceptive Mandate Dispute

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Category: First Amendment, Health Care, Labor & Employment Law, Public, Religion & Law

stethoscopeEd Zelinsky (Cardozo) has an interesting post on his OUP blog discussing a possible compromise in the on-going dispute between for-profit religious corporations, like Hobby Lobby, and the Obama administration’s Affordable Care Act’s (ACA’s) contraceptive coverage mandate.

Here’s a taste:

This entire controversy is unnecessary. The tax law contains devices for reconciling the religious concerns of employers like Hobby Lobby with the policy of expanding medical coverage: health savings accounts (HSAs) and health reimbursement arrangements (HRAs). The current regulatory exemption from the contraception mandate should be amended to include for-profit employers and to exempt from the federal contraception mandate employers (both non-profit and profit-making) who maintain HSAs or HRAs for their respective employees. Compromise along these lines would respect the genuinely-held views of religious minorities while implementing the federal policy of broadening access to health care.

An HSA/HRA compromise would eliminate the complicity of religious employers in the provision of contraception methods to which they object while enabling such employers’ employees to obtain on a pre-tax basis any medicines or devices such employees want, including contraception to which their employers object. Employers’ payments into their employees’ HSAs and HRAs would be the equivalent of the cash wages paid to such employees, wages which the employees are free to spend as they choose.

Personally, I do not see a RFRA or free exercise problem with ACA’s mandate because it is not a law that targets religion or otherwise substantially burdens religious rights of individuals. Read more »

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