Analysis Law and Policy

More Challenges to the Affordable Care Act Percolating in D.C. Circuit Court of Appeals

Jessica Mason Pieklo

Even as the Supreme Court weighs a ruling in the Hobby Lobby and Conestoga Wood Specialties cases, conservatives are pushing more legal challenges to the Affordable Care Act writ large.

Next month, a panel of judges for the U.S. Court of Appeals for the D.C. Circuit will hear oral arguments in two very different challenges to the Affordable Care Act (ACA). The first involves claims brought by Roman Catholic nonprofit groups that are challenging the broad exemption for religiously affiliated nonprofits to the birth control benefit under the ACA. The second involves a more obscure challenge to the health-care law’s individual mandate that argues it violates the Origination Clause of the Constitution. While the two cases represent divergent lines of attacks by conservatives to the Obama administration’s signature domestic policy achievement, they also underscore the importance of the political fight over the D.C. Circuit Court of Appeals.

The U.S. Court of Appeals for the D.C. Circuit is widely considered the second-most important court in the country. Approximately one-third of the cases it hears involve appeals of federal agency decisions. By comparison, federal appeals courts nationwide have less than 20 percent of their caseload comprised of federal agency appeals. That means the D.C. Circuit Court of Appeals often oversees many tests of federal agency power. Up until last year, the D.C. Circuit Court of Appeals was roughly split between four Republicans and four Democrats, with three open seats. President Obama tried for years to fill those three open seats, losing one nominee to a smear campaign coordinated by the National Rifle Association and anti-choice advocacy groups and having his others filibustered by Senate Republicans while they advanced a legislative plan to cut off any further nominations to the court. It wasn’t until Senate Democrats exercised the so-called nuclear option to end the filibuster of some judicial and cabinet appointees that the battle over the D.C. Circuit Court of Appeals ended and President Obama was finally able to appoint three judges to fill the D.C. Circuit Court of Appeals’ vacancies.

Two of those judges, Nina Pillard and Robert Wilkins, are on the panel considering these latest challenges to Affordable Care Act. The third judge, Judith Rogers, is a Clinton nominee who was confirmed to fill the vacancy left by now Supreme Court Justice Clarence Thomas.

Just how different is the D.C. Circuit Court of Appeals with Pillard and Wilkins on the bench? Consider the last time the court considered a challenge to the birth control benefit. In November 2013, Janice Rogers Brown, one of the most conservative members of the federal bench nationwide, authored a 2-1 majority opinion that found in favor of two Catholic brothers who operate Freshway Foods, a 400-person, secular, for-profit produce company in their challenge to the birth control benefit. Referring to the health-care law as the “behemoth known as the Affordable Care Act,” Brown went on to write that the birth control benefit burdens the religious beliefs of corporate owners at the outset while completely ignoring any interest or rights employees may have in accessing that coverage. “The burden on religious exercise does not occur at the point of contraception purchase; instead, it occurs when a company’s owners fill the basket of goods and services that constitute a health care plan,” wrote Brown.

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By contrast, while a professor at Georgetown Law School, Pillard argued that access to contraception and abortion is an important part of ensuring gender equality. As a litigator, she argued, and won, the landmark cases of United States v. Virginia, which opened the Virginia Military Institute to women, and Nevada Department of Human Resources v. Hibbs, which successfully defended the Family and Medical Leave Act against claims it was unconstitutional.

The difference can be seen in cases beyond the birth control challenges. On the same day the Supreme Court heard oral arguments in the Hobby Lobby and Consestoga Wood Specialties cases, a different panel of D.C. Circuit Court of Appeals judges heard arguments in Halbig v. Sebelius, a lawsuit cooked up by the Cato Institute that challenges the federal government’s ability to offer subsidies to help consumers pay for private insurance plans on the federal exchange. Should the challengers be successful, those individuals who live in states where conservative governors and state legislators refused to set up state-run exchanges would no longer qualify for subsidies to help them purchase insurance under the ACA.

Like Halbig, the arguments in Sissel v. Sebelius challenging the individual mandate in the Affordable Care Act have flown under the radar. The gist of the challenge brought by Iowa business owner Matt Sissel is that since the individual mandate is a “tax,” it should have originated in the House of Representatives and not the Senate. Because it did not, Sissel’s lawyers argue, the mandate violates the Constitution. It’s a technical argument that under most circumstances would prompt a legislative, not judicial fix. Both Halbig and Sissel lost in the lower courts, and both lawsuits had been largely dismissed as more political challenge than legal. That is until two conservative judges on the D.C. Circuit Court of Appeals appeared to give new life to the Halbig suit during oral arguments in March. In May, we’ll see how a similar case—framing a political objection to the health-care law as a technical legal violation—will fare in front of more centrists judges.

It’s never clear which cases will end up before the Supreme Court and which ones will not, but the remaining challenges to the ACA percolating in the D.C. Circuit Court of Appeals have as good a shot as any. The religious nonprofit challenges like Priests for Life could end up before the Supreme Court as early as next term given the number of appellate courts considering challenges. In fact, they already have, sort of: Last year, Justice Sonia Sotomayor granted a last-minute request for emergency relief from Little Sisters of the Poor, an organization that runs assisted-living facilities. That order prevented the Obama administration from enforcing the coverage requirement against Little Sisters while its case challenging the constitutionality of the accommodation proceeds, and suggests at least some interest by the justices to weigh in later.

So while the Roberts Court ponders Hobby Lobby, Conestoga Wood Specialties, and whether or not corporations can avoid complying with the birth control benefit by claiming religious rights, there’s every reason to think that no matter what decision the Court issues this summer, the legal challenges to health-care reform are far from over.

Roundups Law and Policy

Gavel Drop: The Fight Over Voter ID Laws Heats Up in the Courts

Jessica Mason Pieklo & Imani Gandy

Texas and North Carolina both have cases that could bring the constitutionality of Voter ID laws back before the U.S. Supreme Court as soon as this term.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts

Texas Attorney General Ken Paxton intends to ask the U.S. Supreme Court to reinstate the state’s voter ID law.

Meanwhile, according to Politifact, North Carolina attorney general and gubernatorial challenger Roy Cooper is actually saving taxpayers money by refusing to appeal the Fourth Circuit’s ruling on the state’s voter ID law, so Gov. Pat McCrory (R) should stop complaining about it.

And in other North Carolina news, Ian Millhiser writes that the state has hired high-powered conservative attorney Paul Clement to defend its indefensible voter ID law.

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Alex Thompson writes in Vice that the Zika virus is about to hit states with the most restrictive abortion laws in the United States, including Alabama, Louisiana, Mississippi, and Texas. So if you’re pregnant, stay away. No one has yet offered advice for those pregnant people who can’t leave Zika-prone areas.

Robin Marty writes on Care2 about Americans United for Life’s (AUL) latest Mad Lib-style model bill, the “National Abortion Data Reporting Law.” Attacking abortion rights: It’s what AUL does.

The Washington Post profiled Cecile Richards, president of the Planned Parenthood Federation of America. Given this Congress, that will likely spur another round of hearings. (It did get a response from Richards herself.)

Kimberly Strawbridge Robinson writes in Bloomberg BNA that Stanford Law Professor Pamela Karlan thinks the Supreme Court’s clarification of the undue burden standard in Whole Woman’s Health v. Hellerstedt will have ramifications for voting rights cases.

This must-read New York Times piece reminds us that we still have a long way to go in accommodating breastfeeding parents on the job.

Roundups Politics

Campaign Week in Review: Clinton Criticizes Trump’s Child-Care Proposal in Economic Speech

Ally Boguhn

Hillary Clinton may be wooing Republicans alienated by Trump, but she's also laying out economic policies that could shore up her progressive base. Meanwhile, Trump's comments about "Second Amendment people" stopping Hillary Clinton judicial appointments were roundly condemned.

Hillary Clinton may be courting Republicans, but that didn’t stop her from embracing progressive economic policies and criticizing her opponent’s child-care plan this week, and Donald Trump suggested there could be a way for “Second Amendment people” to deal with his rival’s judicial appointments should she be elected.

Clinton Blasts Trump’s Child-Care Proposal, Embraces Progressive Policies in Economic Speech

Democratic nominee Hillary Clinton took aim at Republican nominee Donald Trump’s recently announced proposal to make the average cost of child care fully deductible during her own economic address Thursday in Michigan.

“We know that women are now the sole or primary breadwinner in a growing number of families. We know more Americans are cobbling together part-time work, or striking out on their own. So we have to make it easier to be good workers, good parents, and good caregivers, all at the same time,” Clinton said before pivoting to address her opponent’s plan. “That’s why I’ve set out a bold vision to make quality, affordable child care available to all Americans and limit costs to 10 percent of family income.”

“Previously, [Trump] dismissed concerns about child care,” Clinton told the crowd. “He said it was, quote, ‘not an expensive thing’ because you just need some blocks and some swings.”

“He would give wealthy families 30 or 40 cents on the dollar for their nannies, and little or nothing for millions of hard-working families trying to afford child care so they can get to work and keep the job,” she continued.

Trump’s child-care proposal has been criticized by economic and family policy experts who say his proposed deductions for the “average” cost of child care would do little to help low- and middle-wage earners and would instead advantage the wealthy. Though the details of his plan are slim, the Republican nominee’s campaign has claimed it would also allow “parents to exclude child care expenses from half of their payroll taxes.” Experts, however, told CNN doing so would be difficult to administer.

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Clinton provided a different way to cut family child-care costs: “I think instead we should expand the Child Tax Credit to provide real relief to tens of millions of working families struggling with the cost of raising children,” Clinton said in Michigan on Thursday. “The same families [Donald Trump’s] plan ignores.”

Clinton also voiced her support for several progressive policy positions in her speech, despite a recent push to feature notable Republicans who now support her in her campaign.

“In her first major economic address since her campaign began actively courting the Republicans turned off by Donald Trump, Clinton made no major pivot to the ideological center,” noted NBC News in a Thursday report on the speech. “Instead, Clinton reiterated several of the policy positions she adopted during her primary fight against Bernie Sanders, even while making a direct appeal to Independent voters and Republicans.”

Those positions included raising the minimum wage, opposing the Trans-Pacific Partnership trade deal, advocating for equal pay and paid family leave, and supporting a public health insurance option.

“Today’s speech shows that getting some Republicans to say Donald Trump is unfit to be president is not mutually exclusive with Clinton running on bold progressives ideas like debt-free college, expanding Social Security benefits and Wall Street reform,” said Adam Green, the co-founder of the Progressive Change Campaign Committee, in a statement to NBC.

Donald Trump: Could “Second Amendment People” Stop Clinton Supreme Court Picks?

Donald Trump suggested that those who support gun ownership rights may be able to stop Democratic nominee Hillary Clinton from appointing judges to the Supreme Court should she be elected.

“Hillary wants to abolish, essentially abolish the Second Amendment,” Trump told a crowd of supporters during a Tuesday rally in Wilmington, North Carolina. “By the way … if she gets to pick her judges, nothing you can do, folks. Although, the Second Amendment people—maybe there is. I don’t know.” 

Trump campaign spokesperson Jason Miller later criticized the “dishonest media” for reporting on Trump’s comments and glossed over any criticism of the candidate in a statement posted to the campaign’s website Tuesday. “It’s called the power of unification―Second Amendment people have amazing spirit and are tremendously unified, which gives them great political power,” said Miller. “And this year, they will be voting in record numbers, and it won’t be for Hillary Clinton, it will be for Donald Trump.”

“This is simple—what Trump is saying is dangerous,” said Robby Mook, Clinton’s campaign manager, in a statement responding to the Republican nominee’s suggestion. “A person seeking to be the President of the United States should not suggest violence in any way.”

Gun safety advocates and liberal groups swiftly denounced Trump’s comments as violent and inappropriate for a presidential candidate.

“This is just the latest example of Trump inciting violence at his rallies—and one that belies his fundamental misunderstanding of the Second Amendment, which should be an affront to the vast majority of responsible gun owners in America,” Erika Soto Lamb, chief communications officer of Everytown for Gun Safety, said in a Tuesday statement. “He’s unfit to be president.”

Michael Keegan, president of People for the American Way, also said in a Tuesday press release, “There has been no shortage of inexcusable rhetoric from Trump, but suggesting gun violence is truly abhorrent. There is no place in our public discourse for this kind of statement, especially from someone seeking the nation’s highest office.”

Trump’s comments engaged in something called “stochastic terrorism,” according to David Cohen, an associate professor at the Drexel University Thomas R. Kline School of Law, in a Tuesday article for Rolling Stone.

“Stochastic terrorism, as described by a blogger who summarized the concept several years back, means using language and other forms of communication ‘to incite random actors to carry out violent or terrorist acts that are statistically predictable but individually unpredictable,’” said Cohen. “Stated differently: Trump puts out the dog whistle knowing that some dog will hear it, even though he doesn’t know which dog.”

“Those of us who work against anti-abortion violence unfortunately know all about this,” Cohen continued, pointing to an article from Valerie Tarico in which she describes a similar pattern of violent rhetoric leading up to the murders that took place at a Colorado Springs Planned Parenthood.

What Else We’re Reading

Though Trump has previously claimed he offered on-site child-care services for his employees, there is no record of such a program, the Associated Press reports.

History News Network attempted to track down how many historians support Trump. They only found five (besides Newt Gingrich).

In an article questioning whether Trump will energize the Latino voting bloc, Sergio Bustos and Nicholas Riccardi reported for the Associated Press: “Many Hispanic families have an immense personal stake in what happens on Election Day, but despite population numbers that should mean political power, Hispanics often can’t vote, aren’t registered to vote, or simply choose to sit out.”

A pair of physicians made the case for why Gov. Mike Pence “is radically anti-public health,” citing the Republican vice presidential candidate’s “policies on tobacco, women’s health and LGBTQ rights” in a blog for the Huffington Post.

Ivanka Trump has tried to act as a champion for woman-friendly workplace policies, but “the company that designs her clothing line, including the $157 sheath she wore during her [Republican National Convention] speech, does not offer workers a single day of paid maternity leave,” reported the Washington Post.

The chair of the American Nazi Party claimed a Trump presidency would be “a real opportunity” for white nationalists.

NPR analyzed how Clinton and Trump might take on the issue of campus sexual assault.

Rewire’s own editor in chief, Jodi Jacobson, explained in a Thursday commentary how Trump’s comments are just the latest example of Republicans’ use of violent rhetoric and intimidation in order to gain power.


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