Fourth Circuit Unanimously Upholds Obamacare Subsidies

In stark contrast to this morning's split DC Circuit ruling, a unanimous panel of the Fourth Circuit today upheld the ACA's subsidies for Americans buying health insurance on federally-created exchanges. Judge Andre Davis (an Obama nominee) wrote a powerful concurring opinion blasting the illogical premise and blatantly political nature of the lawsuit:

Appellants' approach would effectively destroy the statute by promulgating a new rule that makes premium tax credits unavailable to consumers who purchased health coverage on federal Exchanges. But of course, as their counsel largely conceded at oral argument, that is their not so transparent purpose.

Appellants, citizens of the Commonwealth of Virginia, do not wish to buy health insurance. Most assuredly, they have the right, but not the unfettered right to decline to do so. They have a clear choice, one afforded by the admittedly less-than-perfect representative process ordained by our constitutional structure: they can either pay the relatively minimal amounts needed to obtain health care insurance as provided by the Act, or they can refuse to pay and run the risk of incurring a tiny tax penalty. What they may not do is rely on our help to deny to millions of Americans desperately-needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear. (internal citations removed)

Ouch.

PFAW Foundation

D.C. Circuit Old Guard Strikes Down Key Obamacare Subsidies Provision

A divided panel of the D.C. Circuit this morning struck down a key provision of the Affordable Care Act that allows subsidies for millions of people purchasing health insurance on government-run exchanges. The case is one of four cases on the same issue, strategically planted in various places around the country (Washington DC, Virginia, Oklahoma, and Indiana). The intent is apparently to get a split in circuit court opinions, so the Supreme Court will be more likely to take the case and, the proponents hope, deliver a crippling blow to Obamacare. (Unlike the millions of Americans who would be the real victims if this scheme succeeds, its proponents presumably have access to health insurance.) Today's ruling is the first among the four circuits.

Opponents of healthcare have an argument that might look appealing on the surface but doesn't pass the smell test. Section 1311 of the ACA says states should set up insurance exchanges. Section 1321 of the Act says the federal government can set one up if a state doesn't. The statute also says how to calculate the amount of a subsidy available for less well-off people getting health insurance through an exchange. It's based on the amount the person pays for the insurance s/he is enrolled in through an exchange "established by the state under [section] 1311" of the ACA. It's on the "by the state" language that the ACA's opponents hang their hat.

The anti-ACA people say the text is clear: The subsidy is unavailable to those who are getting their insurance in states where the federal government has set up the exchange. Judge Thomas Griffith and Senior Judge Raymond Randolph (nominated by Bush-43 and Bush-41, respectively) grabbed on to this argument, striking down subsidies for Americans living in states where politicians have chosen not to set up their own state exchanges.

Senior Judge Harry Edwards (a Carter nominee) dissented, pointing out that this was clearly not the intent of Congress. He explained the case quite plainly:

This case is about Appellants' not-so-veiled attempt to gut the Patient Protection and Affordable Care Act ("ACA").

...

Appellants' proffered construction of the statute would permit States to exempt many people from the individual mandate and thereby thwart a central element of the ACA. As Appellants' amici candidly acknowledge, if subsidies are unavailable to taxpayers in States with HHS-created Exchanges, "the structure of the ACA will crumble." It is inconceivable that Congress intended to give States the power to cause the ACA to "crumble." [emphasis added, internal citation removed]

Judge Edwards continues, shattering the majority's argument that their interpretation fits with congressional intent:

Apparently recognizing the weakness of a claim that rests solely on [one particular section of the Affordable Care Act], divorced from the rest of the ACA, Appellants attempt to fortify their position with the extraordinary argument that Congress tied the availability of subsidies to the existence of State-established Exchanges [rather than federal ones] to encourage States to establish their own Exchanges. This claim is nonsense, made up out of whole cloth. There is no credible evidence in the record that Congress intended to condition subsidies on whether a State, as opposed to HHS, established the Exchange. Nor is there credible evidence that any State even considered the possibility that its taxpayers would be denied subsidies if the State opted to allow HHS to establish an Exchange on its behalf.

The majority opinion ignores the obvious ambiguity in the statute and claims to rest on plain meaning where there is none to be found. In so doing, the majority misapplies the applicable standard of review, refuses to give deference to the IRS's and HHS's permissible constructions of the ACA, and issues a judgment that portends disastrous consequences.

Those disastrous consequences are not the intent of Congress, but they are the intent of far right zealots.

The Justice Department has already said it will seek an en banc review by all eleven judges of the D.C. Circuit, where President Obama's opponents have less likelihood of winning than would have been the case a year ago. In case you were wondering why Senate Republicans pulled out all the stops last year and declared they would not allow President Obama to fill any of the three then-existing vacancies on the D.C. Circuit, cases like this are why. The last thing they wanted was a balanced, non-ideological court.

For anyone who cares about healthcare, courts matter.

PFAW

Jamie Raskin Discusses Hobby Lobby and Corporate Religion

Thursday afternoon, PFAW hosted a special member telebriefing on Sebelius v. Hobby Lobby Stores, Inc., a critically important case being argued before the Supreme Court next week that represents the overlap of two important issues: attacks on women's health, and the radical expansion of constitutional "rights" for artificial and increasingly powerful for-profit corporations.. The briefing featured senior fellow Jamie Raskin, who is a respected constitutional scholar at American University and a leading progressive Maryland state senator. Jamie previewed a new report from our affiliate PFAW Foundation: The Gospel of Citizens United: In Hobby Lobby, Corporations Pray for the Right to Deny Workers Contraception.

In Hobby Lobby and a companion case, the Affordable Care Act's contraception provision is being challenged by for-profit corporations regulated by the Act, as well as by the individuals who own the companies. One of the astonishing facets of this case is that for-profit corporations are actually arguing that they – the corporations themselves, totally separate from their owners – have religious liberty rights that are protected by law.

How did we get to a point where for-profit corporations are claiming religious beliefs and rights and not being laughed out of court? Jamie described how Citizens United was a watershed, completely transforming our constitutional jurisprudence and opening the door to Hobby Lobby's arguments. He noted the Tenth Circuit's conclusion that since corporations have First Amendment political speech rights, it follows that they also have religious rights.

Jamie pointed out that no court has ever found that ordinary for-profit corporations have religious rights. And that's what Hobby Lobby is: a profit-making corporation operating more than 500 arts-and-crafts stores with more than 13,000 employees. Quoting Justice Stevens' dissent in Citizens United, Jamie pointed out that "corporations have no consciences, no beliefs, no feelings, no thoughts, no desires." Yet just as that case empowered corporate CEOs to use the corporation's treasury to affect elections, Hobby Lobby threatens to empower corporate officials to impose their own religious beliefs on company employees. In both cases, the power of ordinary people is diminished, as they become more and more subject to the power of corporations.

Jamie also discussed how the implications of Hobby Lobby go far beyond this particular case. If corporations are "ensouled" and found to have religious liberty rights, it opens the door to letting them opt out of anti-discrimination and labor laws their owners don't like. And while Hobby Lobby is a family-owned company where the family ascribes their religion to the corporation, how would you determine the "religion" of a widely-held company like Exxon? Jamie pointed out that the law sees both – the family owned business and the large multinational corporation -- the same.

What can regular people do about all this? PFAW Vice President Marge Baker pointed out that most people don't even know about the dangerous power grab by corporations that the five far-right Supreme Court justices are assisting. It's important to educate our friends, colleagues, and family members about how frequently and dangerously the Supreme Court is bending the law in order to hand power to already-powerful large corporations. And elections matter, because the judges who make these decisions on the Supreme Court and every federal court in the nation are nominated by the president and confirmed by the Senate. With control of the Senate at stake in this year's elections, the results this November will have an enormous impact on the courts.

PFAW

Defining Religious Liberty: Little Sisters' Little Victory

Among the many court cases challenging contraception requirements under the Affordable Care Act, the case involving the Little Sisters of the Poor has been, and continues to be, a strange one. The latest wrinkle came on Friday in what SCOTUSblog’s Lyle Denniston calls a “partial win” for the order of nuns.

The Little Sisters, represented by the Becket Fund for Religious Liberty, appealed to the Supreme Court to prevent the group from having to sign a form documenting its religious objection to providing contraception coverage while its broader challenge to the law moves through the courts. The Tenth Circuit had rejected a similar request.

Under the Obama administration’s accommodation for religious groups, that form would exempt the organization from providing or paying for contraception coverage, and that responsibility would pass to the group’s insurer. In a brief to the Supreme Court, the Solicitor General’s office said that by Becket’s reasoning, a Quaker couldn’t be required to attest to his religious objections before being absolved of military obligations. But Becket insisted that the form acted as a “permission slip” that would trigger contraception coverage, and that would make the nuns complicit.

What makes this argument even stranger is the fact that the Little Sisters’ insurer is classified as a “church plan,” which is exempt from enforcement of the ACA requirement. So whether or not the Little Sisters signed the form, their lay employees would still not have access to coverage.

On Friday, the Supreme Court granted the Little Sisters’ request for an injunction, with a proviso. The group did not have to sign the government’s religious objection form, but it did have to notify the Department of Health and Human Services of its religious objections by letter. The Becket Fund declared victory and announced itself “delighted” by the Court’s compromise.

So, to recap: requiring a religious organization to sign a form opting out of providing contraception coverage is religious tyranny, but requiring a religious organization to send a letter to HHS stating its objections to providing contraception coverage is a victory for religious freedom.

Just wait until the Supreme Court hears the more far-reaching Hobby Lobby case, in which Becket and its client seek to establish the principle that for-profit companies can opt out of laws protecting their employees if those laws conflict with the religious beliefs of the corporation’s owners.

 

PFAW Foundation

Supreme Court to Hear Challenges to ACA's Contraception Coverage

To no one's surprise, the Supreme Court announced today that it will be deciding the legality of the ACA's provision regarding insurance coverage for contraception, which opponents claim violates the religious liberty of for-profit corporations and their owners. The Court will be hearing two cases together: Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius. We will be hearing and reading a lot about these cases in the next few months.

At issue is whether the law violates the Religious Freedom Restoration Act or the Free Exercise Clause of the First Amendment. Under RFRA, a federal law is invalid if it imposes a substantial burden on religious liberty, unless it is the least restrictive means to serve a compelling government interest. (This law was passed in 1993 to recreate the substantial scrutiny laws had faced under the Free Exercise Clause until the Supreme Court altered the test in 1990.)

Hobby Lobby is an arts and crafts chain store with 500 stores and 13,000 full-time employees. The Green family who own and operate Hobby Lobby also do business through a corporation called Mardel, a for-profit business operating 35 Christian bookstores with almost 400 employees. The Greens and their corporations argue that the contraception coverage provision poses a substantial burden on their religious liberty in violation of RFRA.

Perhaps the most dramatic claim made in these cases is that for-profit corporations operating hundreds of stores and with thousands of employees have religious liberty interests at all. That's what the Tenth Circuit ruled in the Hobby Lobby case, citing Citizens United, and concluding that the mandate fails under RFRA.

The claim that for-profit corporations have religious rights was rejected by the Third Circuit in the Conestoga Wood Specialties case. That court also ruled that the corporation's family owners don't suffer a religious liberty violation because the law's coverage requirement and the financial penalty for noncompliance fall not upon them as individuals, but upon the corporation. According to the lower court, since they chose to engage in business using the corporate form, accepting all the financial benefits that brings, they cannot "move freely between corporate and individual status to gain the advantages and avoid the disadvantages of the respective forms."

It now appears that the Supreme Court will make important rulings on the religious liberty interests of both for-profit businesses and the individuals who own them.

People can and do disagree on the interplay between individuals' religious liberty and general laws that go against people's religious beliefs. PFAW Foundation's "Twelve Rules for Mixing Religion and Politics" addresses this debate. Government does have the right to demand people and businesses comply with reasonable regulation and social policy, while at the same time, religious liberty is a key constitutional right. The debate over their interplay should be held in a way that does not devolve into claims of a "war against religion," which we hear all too often from the far right.

As far as corporate religion is concerned, the five arch-conservative justices who gave us Citizens United and who routinely bend the law to favor corporate interests may see this as an opportunity to strike another blow for "corporate personhood" and against the workers who the ACA is designed to protect.

PFAW Foundation

New DC Circuit Decision Shows Why GOP Wants to Block New Judges

A three-judge panel of the Court of Appeals for the D.C. Circuit issued a divided ruling today that the Affordable Care Act's contraception coverage provision violates the religious liberty of two business owners. The majority ruling came from far-right Bush-43 nominee Janice Rogers Brown, and she was joined by Bush-41 senior judge Raymond Randolph.

Judge Brown opened her opinion with starkly political language more appropriate to a Republican convention than a judicial opinion:

Two years after our decision Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011), we are asked to revisit the behemoth known as the Affordable Care Act. ... [We] must determine whether the contraceptive mandate imposed by the Act trammels the right of free exercise [of religion] ... [emphasis added]

With politically charged language like that, it was no surprise what her conclusion would be.

The case concerned the two Gilardi brothers and the Freshway corporations they own, a produce and trucking operation that employs about 400 people. The Gilardi brothers and their two corporations sued the Obama administration, contending that their religious liberties were violated by the administration's mandate that insurance plans provide women with contraception coverage without copay.

Judges Brown and Randolph rejected the claim that the Freshway corporations have a religious liberty right that can be violated, since they are not people. But they also ruled that the contraception coverage provision violates the brothers' rights under the federal Religious Freedom Restoration Act. Under RFRA, a law is invalid if it imposes a substantial burden on religious liberty, unless it is the least restrictive means to serve a compelling government interest.

The D.C. Circuit panel's majority ruled that the law fails in every respect. On the question of whether it imposes a substantial burden, Brown and Randolph concluded that the law forces the company's owners to "approve and endorse" the inclusion of contraceptive coverage in their companies' employer-provided plans, despite their religious objections to contraception. (It is not clear how obeying a law is the same as approving and endorsing it.) And they concluded that the interests underlying the contraception provision are not compelling – that is, that the government does not have a strong enough reason to ensure that women have access to affordable contraception.

The dissenting was Judge Harry Edwards, a Carter nominee and the only one of the court's six senior judges not put on the bench by a Republican president. He explained:

There are three reasons why the Mandate does not substantially burden the Gilardis' "exercise of religion." First, the Mandate does not require the Gilardis to use or purchase contraception themselves. Second, the Mandate does not require the Gilardis to encourage Freshway's employees to use contraceptives any more directly than they do by authorizing Freshway to pay wages. Finally, the Gilardis remain free to express publicly their disapproval of contraceptive products. [emphasis in original]

He also recognized that protecting women's health is a compelling government interest.

Yesterday, Senate Republicans made clear their determination to prevent President Obama from filling the three vacancies on the court, filibustering the first nominee just as they had signaled they would do even before they knew who the president's three nominees would be. Today's opinion exemplified why. Including senior judges, who can serve on panels like the one making today's decision, Republican-nominated judges on the D.C. Circuit outnumber Democratic-nominated ones 9-5. And with Republicans having made a deliberate effort over the years to appoint conservative ideologues to the bench, a three-judge panel is more likely than not to have at least two staunch conservatives.

Just a couple of weeks ago, we saw Republicans shut down the government and threaten to destroy the nation's economy is the president did not adopt their policies. Similarly, since President Obama isn't nominating the people that a President Romney would have chosen for the D.C. Circuit, Senate Republicans have taken it upon themselves to limit the size of the court and keep a Democratic president from filling the three vacancies.

That is why it is so important to defeat the GOP effort to filibuster the president's nominees. For them, "elections matter" only when they win.

PFAW

On Women’s Equality Day, Activists Recommit To Stand With Wisconsin Women at Noon Rally

To celebrate the 93rd Anniversary Women’s Equality Day on Monday, People For members joined hundreds of progressive allies on the steps of the Wisconsin State Capitol in Madison for the “Stand With Wisconsin Women” Rally.  The event opened with a song from the Solidarity Singalong participants, and featured Wisconsin women, activists, and legislators speaking out against the Wisconsin GOP’s war against women.

VIDEO: http://youtu.be/H2M9ovQY6nM

 

(Video credit: Scott Foval / PFAW.org)

“Thanks to the ACA, the Affordable Care Act, I will no longer pay co-pays for my birth control.  As a woman I will no longer be charged simply for being a woman, and attempting to control my own reproductive life,” said Kristina Nailen.  “I am still afraid.  I am afraid that after these nine years of accumulating debt just for my bachelors, graduating this year with 83,000 in debt before interest, that I will be able to manage my own health care and make my loan repayments.”

Nailen called on Governor Walker and the Republican-controlled Wisconsin legislature to reverse their decision to cut the BadgerCare program, and immediately restore health care funding and provide access to more than 100,000 Wisconsin women who count on the program for their health care coverage.

The rally also featured a roster of activists, leaders, and legislators calling for equal pay for women,  for paid family leave legislation, and endorsing the return of legislation promoting common sense, true equality, and fairness for all citizens; including working women, low wage workers, same-sex couples, disabled persons, and immigrants.  Following the rally participants entered the Wisconsin capitol building to lobby Governor Walker and members of the Wisconsin legislature, demanding they refocus on creating well-paying jobs, and stop enacting anti-woman measures as distractions from economically-focused legislation.

PFAW

Circuit Court Rejects Attack on Contraception Coverage

Yesterday, the Tenth Circuit Court of Appeals denied a petition to prevent enforcement of the ACA's contraception coverage provision for owners of the Hobby Lobby chain, who disapprove of certain types of birth control. They claim that the law infringes on their religious liberty in violation of the Religious Freedom Restoration Act (RFRA). Under RFRA, federal laws cannot substantially burden the free exercise of religious beliefs unless they further a compelling government interest in the least restrictive manner possible.

As Reuter reports:

The company faces fines of up to $1.3 million daily if it disobeys the mandate, which takes effect on January 1 for Hobby Lobby, a $3 billion chain, and its smaller sister operation, Mardel, a Christian-oriented bookstore and educational supply company.

Both companies are owned by the Green family of Oklahoma City, whose patriarch, David Green, is ranked 79th on Forbes Magazine's list of the 400 richest Americans, with a net worth of $4.5 billion.

In rejecting the RFRA claim, the unanimous court agreed with the lower court, which had put the case succinctly:

[T]he particular burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [the corporate] plan, subsidize someone else's participation in an activity that is condemned by plaintiff[s'] religion. Such an indirect and attenuated relationship appears unlikely to establish the necessary "substantial burden."

The corporation's owners, who are being represented by the right wing Becket Fund for Religious Liberty, have said they will take the case to the Supreme Court.

Several months ago, People For the American Way Foundation released 12 Rules For Mixing Religion and Politics, a publication designed to generate conversation on how to create and sustain a civic space reflecting our nation's Constitution and the values of respectful discourse. One of those rules states:

Government has a right to demand that religious institutions and individuals comply with reasonable regulation and social policy.

Just where to draw the line is a question where reasonable people can disagree. The requirement to provide certain health insurance for your employees – not for yourself, but for people you hire in a business you place in the public stream of commerce – seems a reasonable one.

PFAW Foundation

Far Right Poised to Reverse a Century of Progress with Romney's Court

With as many as three Supreme Court Justices possibly stepping down in the next four years, either Barack Obama or Mitt Romney will have a profound and lasting influence on the nation's highest court. And since federal judges have lifetime positions, the president's impact will last decades after he has left the White House. That is why, as TPM reports today, conservatives are bullish that a Romney Court could reverse the great advances in justice of the past century.

Liberal-leaning Justices Ruth Bader Ginsburg, 79, and Steven Breyer, 74, are likely candidates for retirement during a Romney administration, the GOP nominee has vowed to appoint staunch conservatives, and the influential conservative legal community will make sure he follows through.

Replacing even one of the liberal justices with a conservative, legal scholars and advocates across the ideological spectrum agree, would position conservatives to scale back the social safety net and abortion rights in the near term. Over time, if a robust five-vote conservative bloc prevails on the court for years, the right would have the potential opportunity to reverse nearly a century of progressive jurisprudence.

For all those reasons, conservative legal activists anticipate that a Romney win would be the culmination of their decades-long project to remake the country's legal architecture.

The article is must-reading for learning about the vision of America that a Romney Court would impose on us. As many people know, abortion rights would almost certainly be eliminated. But also in the crosshairs are the federal government's authority to run critically important programs like Medicare, Social Security, and Medicaid. As the article makes clear, conservatives make no secret of their agenda.

The powers conservatives most want to limit are rooted in the Constitution's Spending and Commerce Clauses, which the Supreme Court already constrained in its decision to uphold the Affordable Care Act. The Supremacy Clause could also be circumscribed with one more conservative vote, potentially limiting people's ability to sue if government assistance laws are not properly implemented.

The ACA decision revealed that there are already four votes on the Court to prevent the Taxing Clause from being used to promote regulatory goals. And though the staunchest legal conservatives hope a fifth vote might lead to the eradication or restructuring of programs like Medicare and Social Security, [conservative professor Randy] Barnett cautions that the debate over the scope of that power dates “all the way back to Alexander Hamilton.”

The far right has long bristled against the vision of the Constitution as a document designed to give the federal power robust powers to pass laws addressing national problems and protecting ordinary people from being exploited from those who are far more powerful than they are. They hearken back to an era when a different arch-conservative Court “protected” the “economic liberty” of powerless workers to “agree” to work all day every day at slave wages under horrific conditions. Their cramped vision of congressional authority would severely undermine the American people's power to use Congress address national problems that states and cities alone cannot solve.

Jamie Raskin, a senior fellow at our affiliate People For the American Way Foundation, has written about how the far right's interpretation of the Constitution is at odds with the intent of the founders, and how a robust federal government is essential to giving the American people effective power over our own economic and social life.

The far right has long awaited a complete takeover of the Supreme Court, so they could return our country to a dark time when the economically dominant were able to abuse their power over others with impunity. They have been anxiously awaiting the day when they could retake power from the American people.

That day will be soon, if Mitt Romney becomes president and fulfills his promise to populate the Supreme Court with right wing ideologues.

PFAW

Obama Talks About the Supreme Court

Rolling Stone published an interview with President Obama yesterday in which he discusses what would happen to the Supreme Court – and to the American people – if Mitt Romney wins the election and gets to fill the next Supreme Court vacancies.

When asked if Roe v. Wade would be overturned, the president responded:

I don't think there's any doubt. Governor Romney has made clear that's his position. His running mate has made this one of the central principles of his public life. Typically, a president is going to have one or two Supreme Court nominees during the course of his presidency, and we know that the current Supreme Court has at least four members who would overturn Roe v. Wade. All it takes is one more for that to happen.

President Obama also criticized Chief Justice Roberts' ruling that the Affordable Care Act, while a constitutional exercise of Congress's taxing power, was not constitutional under the Commerce Clause.

The truth is that if you look at the precedents dating back to the 1930s, this was clearly constitutional under the Commerce Clause. I think Justice Roberts made a decision that allowed him to preserve the law but allowed him to keep in reserve the desire, maybe, to scale back Congress' power under the Commerce Clause in future cases.

Although it was mentioned in the interview, the Court's ACA decision also limited Congress's ability to set basic program requirements in federal-state partnerships like Medicare.

If Mitt Romney fills the next vacancies on the Court, the far right Justices will be able to aggressively roll back congressional authority. It is through Congress that the American people are able to address national problems like healthcare, the environment, worker safety, and the economic safety net. And it is through Congress that the American people are most effectively able to hold corporations accountable for their actions when they harm the American people.

But it is through Mitt Romney's Supreme Court that the far right would severely weaken the power of the American people to act through Congress.

PFAW