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

 

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

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

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. 

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