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New Resource: SupremeCourtQuestions.com

anonymous — Wed, 5 Oct 2016 17:10:00 CST

The Independent Women's Voice is debuting a new online resource for information about the role of the Supreme Court. The website, SupremeCourtQuestions.com, features interactive quizzes and links to video content, along with legal briefs and other articles.

For an idea of what you'll find there, try this quiz:

Placing the Administrative State in Constitutional Context

anonymous — Tue, 5 Jul 2016 17:07:00 CST

One issue that affects the healthcare issue (and many others) is the role of the administrative state. For example, the Department of Health and Human Services plays a huge role in making decisions about the implementation of various laws. Various government offices and bureaucracies can offer regulatory guidance pursuant to the Affordable Care Act, and the Centers for Medicare and Medicaid Services oversees these large government insurance programs.

But what power does the administrative state have, and how does that compare to the Constitution's design for the branches of government? IWF's legal fellow Erin Hawley explores this topic in a new legal brief: Placing the Administrative State in Constitutional Context

Here's an excerpt from the executive summary:

America’s administrative state now wields vast power over nearly every aspect of daily life. From setting up a business to building a home to accessing contraceptives, it is often an administrative agency that writes, enforces, and adjudicates the legal standards that govern these activities. This legal brief explores the problem of governance by administrative agency. First, the brief highlights how often the legal rules that affect individuals and businesses are made, not by Congress, but instead by unelected administrators. The brief then explores the Framers’ views of constitutional structure, and in particular, their understanding of separation of powers and nondelegation as necessary to preserving individual liberty.

Next, the brief locates the origins of the administrative state in anti-constitutional progressive thought. For the Progressives, administration, rather than republicanism, was the key to good government. Because administrators were to be neutral experts, the Progressives designed administration to be unaccountable to elected officials. They wanted a different kind of government, one where republicanism—or governance by elected representatives—didn’t get in the way of efficiency.

Finally, the brief explains why the administrative state is in significant tension with the Founders’ Constitution. In particular, the current administrative state contravenes the limited government envisioned by the Founders by placing all of the government’s power in one branch, rather than in the three separate branches. This so-called Fourth Branch of government typically exercises legislative, executive, and judicial powers, and without much oversight by the elected branches. Further, broad and open-ended statutes passed by Congress give administrative agencies unheard of discretion to “write” the law. Practically speaking, the executive exercises little oversight over these agencies. And the Supreme Court has largely ceded the field when it comes to judicial review. While the Progressives did not care about upending the constitutional framework—they viewed the Constitution as a historical anachronism that must give way to more efficient administration—we should be wary of arguments and institutions that exchange liberty for efficiency. Though the vast size of our federal government makes it difficult to envision life without the administrative state, like the Founders, we should be concerned when government agencies ordinarily exercise all of the government’s power and are often practicably unaccountable to the people and their elected representatives.

Read this and other legal briefs from the Independent Women's Forum on our website.

SCOTUS Issues Non-Ruling in Zubik v. Burwell

anonymous — Mon, 16 May 2016 12:05:00 CST

Today the Supreme Court issued this unsigned opinion in Zubik v. Burwell, the consolidated case brought by religious non-profits to challenge the Affordable Care Act's birth control mandate. The opinion essentially sends the issue back to lower (appellate) courts, with instructions to find a compromise agreeable to all parties.

This opinion represents an important victory for the petitioners. With the passing of Justice Scalia, there were few likely outcomes that would have served the law's challengers better than this one. The most likely outcome would have been a 4-4 rulling, which would have allowed the lower courts' rulings to stand. Most of the lower courts had sided with the federal government. But today's opinion vacates those prior rulings and instructs the 3rd, 5th, 10th, and D.C. Circuits to try again.

From the opinion:

Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans “receive full and equal health coverage, including contraceptive coverage."

U.S. House Wins at District Level in House v. Burwell

anonymous — Thu, 12 May 2016 13:05:00 CST

The U.S. House won an important victory today at the district level in House v. Burwell. This case started with several claims from the legislative branch that the executive branch was overstepping its authority in the ways it was implementing the Affordable Care Act or ObamaCare. The ruling in the case came down to the cost-sharing subsidies that the Obama Administration sent out to insurance companies, which Judge Rosemary Collyer declared illegal. These subsidies were never appropriated by Congress. Here is a statement from the Independent Women's Voice that explains more:

"A federal judge has ruled that the Obama administration cannot violate the rule of law and illegally spend tens of billions of dollars to prop up its failing health care program. Despite the clear letter of the law, the Obama administration has been blatantly violating the Constitution’s Separation of Powers in paying cost-sharing subsidies without an appropriation from Congress, spending that would total $130 billion over 10 years.

"U.S. District Court Judge Rosemary M. Collyer called a halt to the Obama Administration illegal funding of this ObamaCare subsidy program. Contrary to the headlines, low-income people will continue to qualify for more generous coverage since the judge stayed her order pending an inevitable appeal. It is Big Insurance that will not be paid additional taxpayer money since – and this is not a small detail – Congress never appropriated funding for this blank check to insurance companies.

"This decision is a win for American citizens who have been devastated by ObamaCare's premium hikes, insurance cancellations, and reduced choices. By refusing to allow the Administration to throw good money after bad to prop up its already-failing program, this will only hasten the much needed reconsideration of legislation to repeal and replace ObamaCare to make better health care broadly and affordably available. And it is a timely reminder that this is not a monarchy, but a democracy, and there are limits to executive power."

Challengers in Zubik File Further Briefs

anonymous — Tue, 12 Apr 2016 16:04:00 CST

The Supreme Court did something surprising last month -- Justices asked challengers in Zubik v. Burwell to file briefs examining other ways that women might access contraception if the Affordable Care Act's mandate were not applied to them (non-profit religious employers). Today, those challengers filed their briefs.

This is clearly connected to the Religious Freedom Restoration Act, the law that Justices use to balance government (public) interests against religious liberty concerns. The RFRA says that government action can only burden someone's religious freedom if the government is acting toward a compelling public interest and acting by the least restrictive means to that end. This last part is where the government lost its case against Hobby Lobby, because Justices were not convinced that the birth-control mandate was the least restrictive way to make sure women had access to contraception (a public interest).

Remember, Zubik is different from Hobby Lobby because challengers in Zubik have been offered an "accommodation" under the mandate. Under the accommodation, non-profit employers must file some paperwork, essentially referring their workers to a third party to provide the coverage for the offending forms of contraception.

Counsel for some of the challengers at Alliance Defending Freedom had this to say about the situation:

"The Supreme Court asked if any way exists to offer contraceptive and abortifacient coverage without making Christian schools, nuns, and priests complicit in providing them. The answer we gave the court today is yes. There are many ways in which all women could receive cost-free contraceptive coverage that wouldn’t require involvement by religious non-profit groups. The government could offer separate avenues for contraception coverage that do not hijack the non-profits’ insurance plans. The Supreme Court should rule in favor of the non-profits in light of the numerous means the government has to achieve its objectives without violating anyone’s religious liberty.”

The Court is expected to rule on this case this summer.

Justice Scalia's Legacy in ACA Cases

anonymous — Mon, 15 Feb 2016 15:02:00 CST

Supreme Court Justice and conservative legal mastermind Antonin Scalia passed away on February 13. His legacy runs far and wide and deep, touching a host of legal issues. On the HealthCareLawsuits blog, we will flag a few ways Scalia impacted the Supreme Court cases related to the Affordable Care Act:

In 2012, Scalia dissented with the majority (5-4) that upheld the ACA's individual mandate. He sided with six other justices to rule that the law's Medicaid expansion should be optional for states.

In 2014, Scalia joined the majority (5-4) to rule against the government in the Hobby Lobby case on the law's contraception mandate.

In 2015, Scalia authored the dissenting opinion in King v. Burwell, the case that upheld (5-4) the ACA's subsidies and tax credits. The Cato Institute's Michael Cannon writes about Scalia's dissent:

While the majority dismissed or expressly refused to consider parts of the ACA that contradicted its interpretation, Scalia took the time to examine every argument and the entire statute. He methodically and efficiently debunked each argument the majority offered for ignoring what everyone knows the law says. He showed how the majority’s interpretation directly conflicts with multiple provisions of the ACA, including the operative text and the provisions the majority conveniently refused to consider. He famously, colorfully, and characteristically described the majority’s reasoning as interpretive jiggery-pokery” and “pure applesauce.”

This year, as the Court examines a case similar to Hobby Lobby, Scalia's vote will be sorely missed. The Little Sisters of the Poor case (which has now been combined with other similar cases) will be heard before the Court on March 23. Should the Court rule 4-4 on this case in Scalia's absence, then the lower court rulings on this issue will stand. The Little Sisters lost their case at the 10th Circuit, so a 4-4 ruling at the Supreme Court would essentially mean a loss for them.

"Little Sisters" Special Guests at SOTU

anonymous — Tue, 12 Jan 2016 15:01:00 CST

Sisters Loraine Marie Maguire and Constance Veit, members of the order "Little Sisters of the Poor" will attend President Obama's final State of the Union address, even as their order fights with the Obama Administration in court. The Sisters will be guests of House Speaker Paul Ryan.

Most recently the Little Sisters, along with other petitioners suing over the so-called "birth control mandate," filed a brief with the Supreme Court, who will hear their case this year. Their case centers on an accommodation that the Administration offered to some religious groups on the mandate. Churches and houses of worship can be exempted entirely, but other religious non-profits, like the Little Sisters (a group of nuns who care for elderly and dying patients) can only be "accommodated." The Sisters and other petitioners explain that the government should not be in the business of deciding which religious groups are "religious enough" for the exemption, and that the accommodation still forces them to violate their deeply-held religious groups, as they are party to the process by which their employees could access contraceptives that they find morally objectionnable.

The Independent Women's Forum, the organization behind HealthCareLawsuits.org, has filed an amicus brief, siding with petitioners.

Members of Congress Support Sissel Case

anonymous — Wed, 2 Dec 2015 10:12:00 CST

Today 46 Members of Congress, led by Rep. Trent Franks (R-AZ), filed an Amicus Curiae brief in support of the plaintiffs in Sissel v. HHS. This case challenges the constitutionality of the Affordable Care Act, alleging that because the bill originated in the Senate and raises revenues, it violates the Origination Clause. Here is a link to their brief.

Here's what the Congressmen had to say about their action, from their press release about the Amicus brief:

The brief traces the historical foundation of the Origination Clause, demonstrating that the chamber closest to the people and elected every two years has the sole power to originate revenue raising bills. The Origination Clause, found in Article 1, Section 7 of the U.S. Constitution, requires that “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills." Obamacare, which was upheld by the U.S. Supreme Court on the grounds that it was a tax (aka a "Bill for raising Revenue") instead originated in the Senate.

Pacific Legal Foundation is handling the litigation of this case. You can read more about their efforts here.

SCOTUS to Hear Little Sister of the Poor Challenge

anonymous — Mon, 9 Nov 2015 14:11:00 CST

The Supreme Court just announced that it will hear a new challenge to ObamaCare's mandate that all employers provide first-dollar coverage for all FDA-approved contraceptives. This case is a lot like the one brought last summer by Hobby Lobby Stores, Inc., but this time, the challengers are non-profit groups including hospitals, universities, and charities. Because of their religious affiliations and convictions, these groups do not want to be a part of providing contraceptives that they find morally objectionable.

One of these groups is Little Sisters of the Poor, a group of Catholic nuns who care for the sick and elderly poor. These sisters have taken vows of chastity, meaning not only do they oppose birth control, but they have no need of it. IWF is proud to be supportive of their case through the amicus brief that we filed this summer. Here's an excerpt from our brief:

As with the Hobby Lobby case, this case is about more than contraception. It is about the principles of liberty that animate our Constitution. It is about empowering women to choose the healthcare and salary options that best fit their needs. And it is about empowering charitable employers, many lead by women, to follow their deeply held religious convictions—regardless of the form of their charitable entity. Women do not check their religious liberty rights at the office door.

The Obama Administration has made a blanket exception to this mandate for churches, but for other religious non-profits, they offered a so-called accommodation: Instead of directly providing insurance coverage for the drugs and devices in question, the non-profit employers must sign paperwork instructing a third party to provide the coverage to their employees.

This is troubling not just because it burdens the religious freedom of non-profit employers, but because it puts the federal government in a place it doesn't belong, deciding who is sufficiently "religious enough" to get an exemption. We might all think that surely nuns are religious enough, but it's government making this distinction in the first place that is troubling.

It's good news that the Court has decided to take up this case. If the Court applies the same logic as in Hobby Lobby v. Burwell, they will see that the non-profit employers are facing a substantial burden to their religious freedom, even under the "accommodation," and that there is a better way for the government to attempt to provide broad access to contraceptives.

It is suprising that the Obama Administration has not yet realized this: They lost in Hobby Lobby, and these other cases have been working their way through district and appellate courts for years now. Did they not see this coming? Now they will have to deal with the optics of facing nuns, hospitals, universities, and other religious charities in Court. These charities do so much good in society; they simply want no part in ObamaCare's contraception mandate. But the Obama Administration would prefer to shut them down, through backbreaking fines for noncompliance, than allow them to continue providing education and healthcare services to those most in need. Mind-blowing.

Origination Clause Case May Head to SCOTUS

anonymous — Mon, 26 Oct 2015 11:10:00 CST

In a unique challenge to the Affordable Care Act, plaintiff Matt Sissel has alleged that the individual mandate is unconstitutional and furthermore that the entire law is unconstitutional because it originated in the Senate, not the U.S. House, where revenue-raising bills must originate. We've covered this Origination Clause challenge since its inception.

Today the nonprofit handling litigation for Sissel, the Pacific Legal Foundation, has filed a petition for certiorari with the Supreme Court. The case started in federal district court and was last heard in the D.C. Court of Appeals, where a panel of three judges ruled against the plaintiff. Now he is appealing to the only court left who can hear his case.

Here is what the Pacific Legal Foundation said about today's landmark filing:

Pacific Legal Foundation and Matt Sissel are asking the Supreme Court to accept our challenge to Obamacare, in order to uphold and enforce the Constitution’s safeguards against arbitrary taxation, and to liberate Americans from a harmful law that was imposed in defiance of those procedures and protections.

You can read more about this case here.

Today's filing is already getting some attention in the news media. At HealthCareLawsuits.org, we will keep you posted on this case and any others challenging ObamaCare.

District Court Will Hear ObamaCare Case

anonymous — Mon, 19 Oct 2015 15:10:00 CST

Yet another effort from the Administration to squash the House-led lawsuit against ObamaCare's "cost-sharing" provision has failed. District court judge Rosemary Collyer ruled last month to deny the Administration's motion to dismiss the case. The Administration sought an immediate appeal of this decision, but the court denied this request and instead set a briefing schedule for the case to continue. Oral arguments have been set for January 18, 2016.

CNN reports:

"Suffice it to say, the Court is not convinced it erred," Collyer wrote. "Defendants will have a chance to make their argument to the Court of Appeals; the only question is whether they may do so now."

At issue in the case is the so-called "cost sharing" provisions that require insurance companies offering health plans through the law to reduce the out-of-pocket costs for policy holders who qualify. The government offsets the added costs to insurance companies by reimbursing them, but the lawmakers say that Congress did not properly approve the money for those reimbursements.

"I'm pleased with today's ruling," Boehner said in a statement. "The court has previously ruled that the House does, in fact, have standing to challenge one of the president's unilateral actions with regard to Obamacare... It's another important step toward holding the president accountable for his unconstitutional actions."

Stay tuned to Health Care Lawsuits for more updates about this case as oral argument approaches in January.

House Gets Go-Ahead in Overreach Lawsuit

anonymous — Sat, 12 Sep 2015 14:09:00 CST

Thursday a federal judge ruled that a lawsuit filed by the U.S. House of Representatives can proceed. This lawsuit, which I've covered here before, alleges that the executive branch of of government overstepped its authority. Specifically, the claims of the lawsuit include the paying out billions of dollars to health insurance companies without Congressional approval and unilateral delay of ObamaCare's employer mandate.

Importantly, this latest decision from district court Judge Rosemary Collyer is not a ruling in favor of House Republicans. It only allows the case to move forward. In legalese, this is a denial of the defendant's motion to dismiss the case. But the decision did reject one aspect of the case: the employer mandate delay.

Critics of this lawsuit say it's all about politics, and that it's inappropriate for the House to use the court system to push back on ObamaCare in this way. But House leaders defend the suit, saying the executive branch is exceeding its constitutional authority, and arguing that as a coequal branch of government, it makes sense for them to sue.

You can read more about the latest events in this lawsuit in this report from The Hill.

Burwell Wins - Explaining Today's Ruling

anonymous — Thu, 25 Jun 2015 15:06:00 CST

Today the U.S. Supreme Court released its opinions in King v. Burwell, the case about whether the IRS had authority to disperse federal subsidies in states that did not establish their own exchanges.

Justices Roberts, Kennedy, Ginsberg, Breyer, Kagan and Sotomayor comprised the majority. The other three Justices (Scalia, Thomas, Alito) dissented. Here's the bottom line: The majority ruled that the IRS, when it sent out subsidies on behalf of consumers in non-establishing states, had the right interpretation of the law. If it is any good news, the Court did NOT say that it was up to the IRS to make this interpretation, but rather the agency's interpretation was the correct one. Justice Roberts, who wrote the majority opinion (link to all opinions here), relied heavily on the purpose of the law, but did not rule that the Chevron deference principle was applicable here.

Here is my statement on today's ruling, from the Bridge to Better Health Care project:

“It’s important to understand that today’s decision was strictly about a technical interpretation regarding the implementation of the Affordable Care Act, and had nothing to do with the merits of the law which, more than five years after its implementation, the American people continue to oppose. The public has already suffered too long under this law and its broken promises. Even after no fewer than 50 major changes, many by executive fiat, it remains fundamentally broken and no amount of band-aids or tweaks will make it acceptable to the public.

“Now, we need to move forward to lay the foundations for consensus on a better plan and the political environment toimplement it. We can’t just settle for short-term fixes. Many of the biggest harms are yet to come, with fines doubling next year for individuals who don’t buy mandated insurance and all but the smallest businesses facing penalties and fines from the employer mandate. And that doesn’t count the significant increases topremiums and deductibles if one does comply."

Basically, it is now clearly up to the legislative and executive branches to change health policy. The Supreme Court has shown once again that it will uphold ObamaCare as it is currently being implemented.

VIDEO: "Healthcare Minutes" Explain King v. Burwell

anonymous — Fri, 12 Jun 2015 11:06:00 CST

I've teamed up with A Bridge to Better Health Care to offer a daily "Healthcare Minute" video. These videos will explain what's happening in health policy and ways we can make it better. If you have a question you'd like to see answered in a healthcare minute, tweet it to @abridgetobetter. Here are the first two videos that explain what King v. Burwell is and what effects it might have. To see future videos, follow @abridgetobetter on Twitter.

INFOGRAPHICS: Impact of King v. Burwell Case

anonymous — Thu, 21 May 2015 16:05:00 CST

The Bridge to Better Health Care project today released two new infographics that illustrate the impact of a ruling for the plaintiffs in King v. Burwell: