David King et al vs Sylvia M. Burwell, Secretary of Health and Humans Services (“HHS”) et al On November 7, 2014, just 3 days after the Republicans gained 12 more seats in the House and won back the Senate, the United States Supreme Court (SCOTUS) issued a Writ of Certiorari to hear another case involving the controversial Patients Affordable Care Act (the “ACA”) passed by Congress and signed into law by President Obama on March of 2010. This case originated from the United States District Court from the Eastern District of Virginia and appealed to the United States Court of Appeals for the Fourth Circuit. Another case appealed to the United States Court of Appeals for the District of Columbia, Halbig vs Burwell, dealt with the identical issue. The decisions emerged almost simultaneously and the decisions reached were completely opposite. The issue this time is not the Constitutionality of the law but the statutory interpretation by the IRS. . It will be argued before the Court on March 4, 2014 and the decision will be reached at the end of the term in June According to the Oyez Project, the facts of this case are the following. In 2010, Congress passed the Affordable Care Act (ACA) to increase the number of Americans covered by health insurance and decrease the cost of health care. The ACA required each state to establish an “exchange” through which people could purchase health care coverage, and if a state elected not to do so, the federal government would establish one through the Secretary of HHS. The ACA also required people to obtain the minimum essential coverage or pay a tax penalty unless they fell within an unaffordability exemption for low-income individuals. To limit the number of people that would fall into such an exemption, the ACA provided for tax credits that are calculated based on the health plan in which an individual enrolls through the exchange. Although the legislative language of the ACA pertaining to the tax credits only referred to the exchanges established by the states, the Internal Revenue Service (IRS) created a regulation that made the tax credits available to those enrolled in plans through federal as well as state exchanges. Virginia declined to establish a state-run exchange and has one operated by the federal government. The plaintiffs are a group of Virginia residents who, without the tax credits, would fall under the unaffordability exception and be exempt from having to purchase health insurance. They sued and argued that the IRS regulation exceeded the agency’s statutory authority, is arbitrary and capricious, and is contrary to the law in violation of the Administrative Procedure Act. The district court granted the defendants’ motion to dismiss, and the U.S. Court of Appeals for the Fourth Circuit affirmed.” The question is…” Did the Internal Revenue Service permissibly create a regulation that extended the tax credits the Affordable Care Act authorized to federal exchanges as well as those created by the states?” The Four Appellants: David King, Douglas Hurst, Brenda Levy and Rose Luck were ineligible for the tax credits. They did not want to comply with the law’s individual mandate and due to their low income, felt they should not be subject to the subsequent penalty levied by the IRS. In the Supreme Court decision reached June 28, 2012 in re: National Federation of Independent Business vs Kathleen Sebelius (132 S.Ct. at 2566 to 2600) where it states the following…”But recognizing that individuals cannot be made to purchase what they cannot afford, Congress provided that the mandate would not apply if the cost of insurance exceeds eight percent” of a person’s household income.” The Respondent, Sylvia M. Burwell, Secretary of HHS, argued on her law brief to the Court stated the following; The IRS is charged with implementing the ACA of 2010 under 26 U.S.C. 36B. Under Section 36B (b) of the ACA, the IRS determines the amount of credit available to a particular taxpayer and therefore is allowed to offer tax credits whenever it deems right. The issue of whether a particular state establishes a web exchange or not is irrelevant since 42 U.S.C. 18041 (c) states that the Secretary of HHS shall establish a web exchange known as a “federal-facilitated Exchange”. Although the federally-facilitated Exchanges are operated by HHS, each one is a state-specific marketplace. Among other things, insurers offering coverage on the Exchange in a particular State must be licensed by that State, 42 U.S.C. 18021(a)(1)(C)(i), and premiums for plans offered on the Exchange are based on rating areas and risk pools unique to the State, 42 U.S.C. 18021(a)(4), 18032(c). The Four Appellants, in this case, resides in a state that chose not to establish an exchange, believe can forgo the individual mandate without the available tax credit under 36B and their earned income level, they would fall within the individual-coverage provision’s unaffordability exemption. Seeking to avoid that result, petitioners filed this suit in federal district court. Petitioners assert that Congress unambiguously precluded the IRS from providing tax credits not only to them, but also to the millions of other residents of States with federally-facilitated Exchanges who rely on credits to make their coverage affordable. Petitioners’ assertion rests on language in two subparagraphs in Section 36B providing that the amount of the available credit is calculated in part based on the cost of health plans that were “enrolled in through an Exchange established by the State under [42 U.S.C. 18031].” 26U.S.C. 36B(b)(2)(A) (emphasis added); see also 26 U.S.C. 36B(c)(2)(A)(i). According to petitioners, that language in the formula for calculating federal tax credits must be read as limiting the availability of credits to residents of States that elect to create their own Exchanges, and to exclude all residents of States that opt to allow HHS to create the Exchanges in their stead. . The district court granted the government’s motion to dismiss. The court concluded that both petitioners and the IRS offered “seemingly credible constructions of the language” in Section 36B(b)(2)(A) “[v]viewed in a vacuum.” But the court found that “when statutory context is taken into account, [petitioners’] position is revealed as implausible.” The court further held that even if it “assumed for the sake of argument that the text of Section 36B is ambiguous,” it would up-hold the IRS regulation as a permissible construction entitled to deference under Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837 (1984) (Chevron). The arguments of the Appellant and the Respondent in this case goes back to the fundamental interpretation methods that date back to the days of Thomas Jefferson and James Madison versus George Washington, John Adams and Alexander Hamilton. Jefferson and Madison, the founders of the Republican Party, were strict constructionists; they want the judiciary to interpret the law to the letter and not stray from initial wording. They supported a weaker national government restricted in its powers by a narrow reading of the Constitution. The Federalist like George Washington, John Adams and Alexander Hamilton believed in a strong national government and should play a role in the economy by investing tax dollars and trade with foreign nations. This case only confirms the old saying …”only time has change, people haven’t”. When two parties go before the Highest Court in the Land to settle their differences, they realize that their case is being judged by 9 human beings. These 9 Justices have their own biases, histories and baggage. These factors affect the language in their opinions. How this Court rule on this issue is hard to predict. The same Court that ruled the Patient’s Affordable Care Act was Constitutional in Commonwealth of Virginia, Ken Cuccinelli vs Kathleen Sebelius, Secretary of HHS, ruled against the Contraceptive mandate for violating the Respondent’s rights to Freedom of Religion in Sylvia M. Burwell, Secretary of HHS vs Hobby Lobby Stores, Inc. No Legal Analyst in the media could have predicted Chief Justice Roberts’ intention to vote with 4 of his Liberal brethren and be the author of the majority decision. Some have speculated that Roberts didn’t want to eliminate a law passed by Congress with a simple stroke of the pen. He preferred that it died by its own merits. This is the third time the ACA has come before the High Court and it may very well be the last. If the Court decides for the Appellant, it will ultimately restrict the IRS from collecting enough tax dollars to fund this ill-conceived healthcare system. Unlike the last 2 times, the biases of the conservative justices may be awakened by the recent release of videos starring the Architect of the Affordable Care Act, Economics Professor Jonathan Gruber from the Massachusetts Institute of Technology (MIT). Professor Gruber was caught on camera insulting the intelligence of the American public, boasting about how the Obama Administration and the Democrats in the House of Representatives and Senate used deception and misinformation to pass the law without allowing anyone to read it. Although he has apologized for those comments, Representative Darrell Issa, Chairman of the House Oversight and Government Reform Committee along with his Republican colleagues in the House and the Senate doubted its sincerity. We’ll find out if the conservative Justices in the United Supreme Court do as well this June.
Posted on: Sun, 04 Jan 2015 23:14:16 +0000
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