Analysis Law and Policy

The New Front in the Legal Fight Over Obamacare

Jessica Mason Pieklo

A lawsuit filed by the State of Indiana shows conservatives' evolving legal strategy in trying to undermine health-care reform.

Click here for all our coverage of the health insurance exchange rollout as part of the Affordable Care Act.

It’s been well over a year since the Supreme Court declared much of the Affordable Care Act constitutional, but that’s hardly stopped conservatives from trying to litigate health-care reform to death. In addition to the now over 70 federal lawsuits challenging the law’s birth control benefit, conservative attorneys general in red states that refused to set up their own health insurance exchanges are targeting the power of the federal government to operate exchanges on their behalf. It’s the latest iteration of a multi-faceted strategy with one goal in mind: to make Obamacare so politically unpopular the law sinks from the weight of its own opposition. If you listen to conservatives, they’ll tell you this is a winning strategy. The evidence, however, suggests otherwise.

The latest lawsuit targeting health-care reform comes from Indiana, where last week attorneys for the state filed a federal lawsuit arguing a new IRS regulation governing the employer mandate in Obamacare is unconstitutional. The IRS poses hefty fines on employers that don’t offer health insurance coverage and whose employees use federal premium subsidies to buy coverage through any public insurance exchange. Under the IRS rules, if employers do not offer health insurance coverage to at least 95 percent of its full-time employees and even one employee uses a federal premium subsidy to buy coverage in either a federal or a state exchange, the employer is liable for a $2,000 penalty for each full-time employee, minus the first 30 employees. The penalty is slated to take effect in 2015.

The lawsuit, filed by Indiana Attorney General Greg Zoeller and 15 Indiana public school districts, claims the Affordable Care Act employer mandate is unconstitutional because Congress never gave the IRS authority to impose penalties for not complying with the individual or employer mandates in states that did not create their own health insurance exchanges and that the financial penalties for not complying with the employer mandate cannot be applied to government employers, like public schools.

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Indiana’s lawsuit follows a similar suit filed by Oklahoma’s attorney general this summer. Oklahoma’s lawsuit, which was originally filed in January 2011 but remained pending until a resolution of the lawsuit challenging the individual mandate was made, cleared its first legal hurdle this summer when a federal district court refused to grant the Obama administration’s motion to dismiss the lawsuit.

The motion, brought at the initial stage of the lawsuit, challenged Oklahoma’s standing to sue and not the merits of the claims, a point mostly overlooked by conservatives who heralded the August ruling as more proof the law would ultimately fail. And like the other conservative legal challenges to health-care reform, the legal claims sound sophisticated, but in reality they are more smoke-and-mirrors.

According to the states challenging the employer mandate and IRS rule, unless insurance subsidies are administered by exchanges created by the states, the subsidies are forbidden by the ACA. Therefore, states that have not set up their own exchanges, including Indiana and Oklahoma, effectively cut their residents out of affordable health insurance. That’s because, the red states argue, if the federal government comes in and sets up an exchange after a recalcitrant state refuses to, those exchanges can’t offer subsidies to make coverage affordable because the law only explicitly empowers state-run exchanges, and not the IRS, to offer those subsidies. The result is apparent: It create no means of affordable coverage in most of the red states for those who need it most. And thanks to the Roberts Court ruling that the individual mandate is constitutional, people who struggle to get coverage but are not so poor as to meet the exemption would be stuck with a penalty and no health-care coverage, increasing support for a repeal of the law.

But, that hasn’t quite happened. In August, while the federal court refused to dismiss Oklahoma’s claims outright, it hardly gave an enthusiastic support of the merits of the claims either, noting that at the beginning of a lawsuit, plaintiffs are entitled to very “lenient” standards in coming up with viable legal claims.

More importantly, though, the August order, while allowing the lawsuit to proceed, largely dismisses the main theoretical premise of Oklahoma’s lawsuit and the suit advanced by Indiana—the premise being that the states, vis-a-vis the Tenth Amendment, have legal interests to pursue claims against the federal government on behalf of their constituents. The law calls this idea parens patriae, which roughly translates to the state “acting on behalf of” someone unable to act in their own interests. It’s a theory that shows up in some juvenile proceedings, for example, where the state steps into a “parental role,” so to speak, to assert rights and legal challenges on behalf of someone who is, for whatever reason, unable to assert them on their own. But courts have long rejected the idea that states can pursue such claims, because they typically don’t contain an actual injury—a loss of rights or an injury to a person or property sufficient to justify legal action. It’s a fundamental procedural concept—before anyone can sue, even the state, they have to have something legitimate to sue about. The Supreme Court made this clear in 1923, when it said “the naked contention that Congress has usurped the reserved powers of the several States by the mere enactment of a statute” is not enough to establish a state’s standing to challenge the law and sue the federal government.

Enter, then, the newest wave of conservative legal ideologues. Like the evolution of corporate religious exercise claims to challenge the contraception benefit, this latest iteration of the power of the states under the Tenth Amendment would have been widely dismissed a decade ago. But that was before conservatives made it their mission to defeat Obamacare at any cost. Now, with the federal government shutdown dragging into its second week and conservatives refusing to back away from demands that if the entire health-care law doesn’t go then at least the contraception benefit must, it’s clear that these lawsuits are simply a part of their war on the poor and their political crusade to make health-care reform too costly for the Obama administration to maintain. And while so far polling suggests this is a strategic misfire for the Republicans, that hardly matters for the tens of thousands who have been blocked by their own states from most of the benefits of health-care reform and now face the end of federal benefits as those same conservatives hold their lives hostage in the shutdown games.

Naturally, that’s now how conservatives see it. “This case is about the fundamental relationship between the State and federal government,” Indiana Attorney General Zoeller said in a statement announcing the lawsuit. “We contend the ACA improperly regulates sovereign states and does not authorize the IRS to do what it is doing in treating the State as a taxable entity. We are raising this respectful challenge for the federal courts to decide these questions.”

Zoeller’s statement is disingenuous at best. The legal theory, advanced by both Indiana and Oklahoma in their challenges to the employer mandate, was first cooked up by legal scholars at the libertarian Cato Institute, the same scholars that concocted the original legal challenge to Obamacare. These are not “respectful” challenges as much as they are political challenges disguised as legal arguments, and it’s time for the courts to recognize them as such.

News Law and Policy

Voting Rights Advocates Notch Another Win, This Time in Texas

Imani Gandy

This makes two voting rights victories in as many days for voting rights advocates. A federal judge on Tuesday in Wisconsin ruled that voters who unable to comply with the state's photo ID requirement would be allowed to vote in the November's election.

The ultra-conservative Fifth Circuit Court of Appeals, in a surprising victory for voting rights advocates, ruled that Texas’s voter ID law disproportionately burdened Black and Hispanic voters in violation of the federal Voting Rights Act (VRA) of 1965.

The decision means Texas can’t enforce the law in November’s presidential election.

Wednesday’s ruling was the latest in a convoluted legal challenge to the Texas law, which conservative lawmakers passed in 2011 and is among the most stringent voter ID laws in the nation. Voting rights advocates challenged the measure almost immediately, and the law remained blocked until the Roberts Court’s 2013 ruling in Shelby County v. Holder revived it.

The Court in Shelby struck down a key provision of the VRA, Section 4, which is the coverage formula used to determine which states must get pre-clearance from the Department of Justice or the District Court for the District of Columbia under Section 5 of the VRA before making any changes to their election laws. States with a history of racially discriminatory voting requirements like Texas were covered by the Section 4 pre-clearance requirement before the Shelby decision.

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Within hours of the Court’s ruling in Shelby, Texas officials announced that they would begin enforcing SB 14, the restrictive voter ID law.

In response, a group of Texas voters sued Texas under a different portion of the civil rights law, arguing SB 14 violates Section 2 of the VRA, which forbids voting procedures that discriminate on the basis of race. Unlike Section 5 of the VRA, which requires state officials prove a voting rights law has no discriminatory intent or effect, under Section 2, the burden of proving racial discriminatory intent or effect is placed on voters to prove the restriction discriminated against their voting rights.

Both the district court and a three-judge panel of the Fifth Circuit agreed and found that SB 14 had a discriminatory affect in violation of Section 2 of the VRA. Texas then requested that the Fifth Circuit rehear the case en banc, with the full slate of judges on the Fifth Circuit.

The full Fifth Circuit issued that decision Wednesday, handing Texas conservatives a decisive loss.

“The record shows that drafters and proponents of SB 14 were aware of the likely disproportionate effect of the law on minorities, and that they nonetheless passed the bill without adopting a number of proposed ameliorative measures that might have lessened this impact,” Judge Catharina Haynes wrote for the majority.

Texas claimed that it had modeled its law after Indiana’s law, which was upheld in another challenge, Crawford v. Marion County Election Board. The Fifth Circuit, however, rejected Texas’s argument, finding obvious differences between the two laws that affected its decision that Texas’s law had a discriminatory impact on people of color.

“While cloaking themselves in the mantle of following Indiana’s voter ID law, which had been upheld against a (different) challenge in Crawford, the proponents of SB 14 took out all the ameliorative provisions of the Indiana law,” Haynes wrote.

One such ameliorative provision was an indigency exception, which the GOP-dominated Texas house stripped from the law. That exception would have freed indigent people from any obligation of paying fees associated with obtaining a qualified photo ID.

Although the Fifth Circuit found that the law violates the Voting Rights Act, the Fifth Circuit did not fashion a remedy for this violation and instead, remanded the case back to the lower court, instructing it that the “remedy must be tailored to rectify only the discriminatory effect on those voters who do not have SB 14 ID or are unable to reasonably obtain such identification.”

In addition, the appeals court reversed the lower court ruling that Texas had intended to discriminate against racial minorities. The court found evidence to support such a claim, but ultimately found that the district court’s overall findings were insufficient, and sent the case back to the district court to reconsider the evidence.

Nevertheless, voting rights advocates hailed the decision as a victory.

“We have repeatedly proven—using hard facts—that the Texas voter ID law discriminates against minority voters,” Gerry Hebert, executive director of the Campaign Legal Center and an attorney for the plaintiffs, said in a statement, according to the Texas Tribune. “The 5th Circuit’s full panel of judges now agrees, joining every other federal court that has reviewed this law. We are extremely pleased with this outcome.”

Texas Republicans, including former governor and presidential candidate Rick Perry, rushed the law through the GOP-majority legislature in 2011, arguing that it was necessary to prevent voter fraud, even though voter fraud has been found to be almost nonexistent in other Republican-led investigations.

Politifact found in March of this year that since 2002, there had been 85 election fraud prosecutions, and not all of them resulted in convictions. To put that in perspective, from 2000 to 2014, some 72 million ballots were cast in Texas, not counting municipal and local elections.

Justin Levitt, a professor at Loyola Law School in Los Angeles, argued in 2015 that most of the Texas prosecutions would not have been prevented by the voter ID law, since the prosecutions were not for in-person voter fraud, but rather for marking someone else’s absentee ballots without their consent, fake registrations, or voting while ineligible.

“There are vanishingly few instances of voter fraud—incidents flat-out, not just prosecutions—that could be stopped by applying a rule requiring ID at the polls,” Levitt said, according to Politifact.

Opponents of SB 14 cited the near absence of proven in-person voter fraud, arguing that the law was intended to dilute the voting strength of the state’s increasing population of people of color, many of whom do not have photo identification and who would find it difficult to obtain it, as the opinion noted.

Laws requiring photo identification disparately impact people of color, students, and low-income voters, all groups who tend to vote for Democrats rather than Republicans.

Nevertheless, Texas conservatives continue to insist that the law was appropriately tailored to address voter fraud. “Voter fraud is real, and it undermines the integrity of the process,” said Gov. Greg Abbott (R) in a statement on Wednesday, according to the Texas Tribune.

Texas may appeal to the Supreme Court and ask the high court to intervene, although given that the Roberts Court remains short one judge, a 4-4 split is possible, which would leave in place the Fifth Circuit’s ruling.

This makes two voting rights victories in as many days for voting rights advocates. A federal judge on Tuesday in Wisconsin ruled that voters who unable to comply with the state’s photo ID requirement would nevertheless be allowed to vote in the upcoming election in November.

Commentary Law and Policy

Republicans Make History in Obstructing Merrick Garland for Supreme Court

Jessica Mason Pieklo

Merrick Garland is now officially the longest Supreme Court nominee to go without confirmation hearings or a vote in U.S. history.

Merrick Garland, President Obama’s selection to replace Justice Antonin Scalia, now has the dubious distinction of being the longest U.S. Supreme Court nominee ever to go without a vote to confirm or reject his appointment, thanks to Senate Republicans’ refusal to do their jobs.

I can’t say it any differently. This has been an utter, total failure by grown men, and a few women, in the Senate to do the kind of thing they’re supposed to in exchange for getting paid by the rest of us. And after nearly a decade of unprecedented—and I mean unprecedentedobstruction of President Obama’s judicial nominees writ large, there’s no flowery language that can capture how our federal courts’ slow burn on the the Republicans’ watch has now caught full fire with the fight over Garland’s nomination.

Instead what we have are dry, hard facts. A century ago, Justice Louis Brandeis was forced to wait 125 days before his confirmation to become the first Jewish justice on the Court. Justice Scalia died on February 13 of this year. President Obama nominated Garland on March 16. Wednesday marked 126 days of zero Senate action on that nomination.

And since Congress is now on recess, that won’t be changing anytime soon.

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It’s not just that the Senate hasn’t held a vote. They have held no hearings. Several senators have refused to meet with Garland. They have taken. No. Action. Not a bit. And here’s the kicker: None of us should be surprised.

President Obama had no sooner walked off the Rose Garden lawn after announcing Garland’s nomination in March than Senate Republicans announced their plan to sit on it until after the presidential election. Eight months away. In November.

Senate Republicans’ objection isn’t to Garland himself. He’s a moderate who has generally received bipartisan praise and support throughout his career and should, on any other day, sail through the confirmation process. As compared with both of President Obama’s other appointments, Justices Sonia Sotomayor and Elena Kagan, Garland is practically a gift to Senate Republicans in all his moderate-aging-white-guy-ness. I mean, who would have thought that of all the nominees Republicans were going to double-down their obstruction efforts on, it would be Justice Dad?

Instead, their objection is to the fact that the democratic process should guarantee they lose control of the Supreme Court. Unless, of course, they can stop that process.

Conservatives have spent decades investing in the federal courts as a partisan tool. They did so by building an infrastructure of sympathetic conservative federal judges through appointments when in executive power, and by blocking liberal attempts to do the same when in the political minority. It’s an investment that has largely paid off. Federal circuit appeals courts like the Fifth, Sixth, Eighth, and Tenth issue reliably conservative opinions regularly, thanks to aggressive appointments by conservatives during the Reagan and Bush years.

Meanwhile, thanks to conservative obstruction under Democratic administrations—most egregiously under President Obama—71 district court seats currently sit vacant. Twenty-four of those seats are in jurisdictions considered by the courts themselves to be judicial emergencies: places where the caseload is so great or the seat has remained vacant for so long the court is at risk of no longer functioning.

It’s easy to see why conservatives would want to keep their grip on the federal judiciary given the kinds of issues before it: These are the courts that hear immigration and detention cases, challenges to abortion restrictions, employment discrimination cases, as well as challenges to voting rights restrictions. Just to name a few. But as long as there are no judges, the people being directly affected are left in limbo as their cases drag on and on and on.

Our federal courts of appeals are no better. Nine federal appellate seats sit vacant, five in jurisdictions deemed judicial emergencies.

These vacancies have nominees. Senate Republicans just refuse to confirm them.

And no, the other side doesn’t do this. Federal judgeships have always been political. But never have the Democrats used the judiciary as a blatantly partisan extension of their elected members.

The refusal to vote on Garland’s nomination is the most visible example of the conservatives’ drive to maintain control over the federal courts, but it’s hardly their most blatant display of sheer partisanship. I’m guessing that is yet to come when, should they lose the presidential election, Senate Republicans face the choice of quickly confirming Garland or continuing their stand-off indefinitely. And given what we’ve seen of the election cycle so far, do we really think Senate Republicans are going to suddenly grow up and do their jobs? I hate to say it, folks, but Merrick Garland isn’t getting confirmed anytime soon.