Posts Tagged ‘Justice Anthony Kennedy’

DOMA Bites the Dust

Monday, July 1st, 2013

The U.S. Supreme Court’s voted 5-4 to strike down the 1996 Defense of Marriage Act. Swing voter Anthony Kennedy joined the liberal wing of the court –Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Dissenting were Chief Justice John Roberts and justices Antonin Scalia, Clarence Thomas, and Samuel Alito.. They also ruled that the plaintiffs in the case of Proposition 8, which banned same-sex marriage in California, did not have the legal standing to bring that lawsuit.

The decision is expected to have major consequences on health coverage for legally married same-sex partners of federal employees and members of the military, as well as on tax treatment for private health coverage (a 2007 report from left-leaning think tank Center for American Progress and the UCLA’s Williams Institute found that employees with partners pay over $1,000 more in taxes each year than their married peers).  The caveat is that the ruling applies on to states where same-sex marriage is legal. New Yorkers will benefit; Pennsylvanians will not.

The ruling seems to confirm a sea change in gay rights in this century. Take American corporations which have been far more progressive than the courts on these issues. Hundreds of U.S. employers, both large and small, signed on to an amicus brief against DOMA in February, arguing that treating same-sex couples differently hurt recruiting efforts, as well as employer-employee relations. Nike, Apple and Starbucks were among the nearly 300 firms that joined in filing the brief. According to the Human Rights Coalition, a group that advocates for gay rights, 62 percent of Fortune 500 companies offer domestic partner health benefits.

DOMA barred the government from treating same-sex partners as married, raising the cost of healthcare for same-sex couples and denying them eligibility for federally guaranteed rights such as medical and family leave, and, in some cases, Medicare. In all, it denied more than 1,100 benefits to married gay and lesbian couples.

Thirteen states have or are in the process of legalizing gay marriage.  They join thirteen countries around the world including Argentina, Belgium, Brazil, Canada, Denmark, France, Iceland, Netherlands, Norway, Portugal, Spain, South Africa, and Sweden.

“The principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage,” Justice Anthony Kennedy wrote in the 5-4 decision. “This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.” Kennedy’s 26-page opinion says Congress’ explicit purpose in passing DOMA was to expose same-sex couples in state-sanctioned marriages to “a disadvantage, a separate status, and so a stigma,” which violated the Fifth Amendment guarantee of rights to life, liberty and property.

The law also harmed these children financially, Kennedy wrote, because health benefits provided to same-sex spouses were not entitled to the same federal tax-exemptions as those of heterosexual families’, creating unequal costs for same-sex households. The law also denied survivorship benefits for spouses and children through Social Security.

Non-Profit Hospitals Will Take Financial Hit If the Individual Mandate is Struck Down

Monday, May 14th, 2012

If the Supreme Court overturns the individual mandate that requires Americans to buy healthcare insurance that is contained in the Patient Protection and Affordable Care Act (ACA), non-profit hospitals will struggle with higher costs, according to Moody’s Investors Service.  The individual mandate has become the focus for legal attacks on the healthcare law.  It “would result in a significant reduction in uncompensated care delivered by hospitals” and reduce “utilization of expensive emergency room services,” the rating agency said.

“If the Supreme Court overturns the individual mandate, the private health insurance market would likely weaken under the unbalanced weight of strict provisions to cover all those who seek insurance without the counterbalancing benefit of a new, largely healthy, population segment that would be provided under the mandate,” Moody’s said.  “This scenario could become untenable for many insurers and hospitals, as costs would rise but revenues would not.”

There are additional challenges to non-profit hospitals in the ACA, specifically cuts in reimbursement rates for Medicare and reduction of funds paid to hospitals that serve a disproportionate share of Medicaid recipients, Moody’s said.  “Removing the mandate would make the negative features of reform loom much larger.”  Moody’s said the federal government could turn to a voucher system in which individuals would receive public help for them to buy health insurance, but the results for non-profits hospitals “would be more complex and hard to foresee.”

This is bad news because by a nearly five-to-one margin, hospitals expect the ACA to shrink their revenues. The result suggests that hospital executives are having second thoughts about the deal they made with the Obama administration in exchange for supporting the healthcare overhaul will help them weather the law’s financial repercussions.

According to a recent poll, 55 percent of hospitals and health systems anticipate falling revenues as a result of the law, while 12 percent expect an increase.  Twenty-eight percent were unsure of the law’s effect on revenue, indicating continued concern in the industry over the changes wrought by healthcare reform.  Hospital executives agreed to give up $155 billion in government payments over 10 years in a deal to cap costs borne by the industry as a result of the ACA.  The agreement followed a similar agreement with pharmaceutical companies and enabled the reform.  Two crucial hospital groups — the American Hospital Association and the Federation of American Hospitals — backed the law.  “Hospitals have acknowledged that significant healthcare savings can be achieved by improving efficiencies, realigning incentives to emphasize quality care instead of quantity of procedures,” Vice President Joe Biden said at the time.  “Today’s announcement, I believe, represents the essential role hospitals play in making reform a reality.”

“Hospital and health systems’ financial health has a direct impact on the benefits offered to their employees,” said Maureen Cotter, a senior principal at HighRoads, which took the poll.   “Even though 70 percent of those surveyed stated that they are committed to providing coverage in the long term, and no organizations have plans to discontinue coverage now or in the future, the coverage provided may take a new shape,” Cotter said.

There’s even more bad news in the fact that Howard Dean, a physician who formerly was chairman of the Democratic National Committee, a 2004 presidential candidate and governor of Vermont thinks that the high court will declare the mandate unconstitutional.  Dean believes that Justice Anthony Kennedy’s swing vote will side with the conservative justices when it comes to the individual mandate.  “I do believe that it’s likely the individual mandate will be declared unconstitutional.  Kennedy will probably side with the four right-wing justices. The question is going to be, is this individual mandate question, can that be considered separately from the rest of the bill?  And I think it will be.”

Dean also said the ACA can remain in place without the mandate.  “It’s definitely not necessary for the bill to succeed,” Dean said.  “It was mainly put in by academics who built the program for Governor Romney in Massachusetts, they had did it there, and for insurance companies who will benefit from extra customers.”

According to Dean, “The number of so-called free riders — people who will refuse to get insurance until they get sick — is going to be very, very small.”  Dean noted that the actual benefit of the individual mandate is “relatively small.  Everyone is a libertarian in America, whether Democratic, Republican or independent.  They don’t like to be told what to do by government.”

Supreme Court to Decide Healthcare Reform

Wednesday, November 23rd, 2011

The Supreme Court has agreed to rule on the fate of President Barack Obama’s Patient Protection and Affordable Care Act (ACA) healthcare law, with an election-year ruling due by July on the most comprehensive overhaul in nearly a half century.  The decision had been widely expected because the Obama administration asked the nation’s highest court to uphold the landmark legislation and 26 states asked that the law be ruled unconstitutional.

President Obama expressed confidence that the court would uphold the law when the decision is handed down, just four months prior to the 2012 election.  “Thanks to the Affordable Care Act, one million more young Americans have health insurance, women are getting mammograms and preventive services without paying an extra penny out of their own pocket and insurance companies have to spend more of your premiums on healthcare instead of advertising and bonuses,” said Dan Pfeiffer, the White House communications director.  “We know the Affordable Care Act is constitutional and are confident the Supreme Court will agree,” Pfeiffer said.  The administration pointed out that other landmark legislation, such as the Social Security Act, the Civil Rights Act and the Voting Rights Act, all faced similar legal challenges that failed.

Republicans have vowed to repeal “Obamacare,” but that promise will have to be modified if the high court undercuts the law as written.  A Supreme Court victory would make President Obama even more confident that the law is the major accomplishment of his first term.

Senate Minority Leader Mitch McConnell, (R-KY) said “this misguided law represents an unprecedented and unconstitutional expansion of the federal government into the daily lives of every American.”  The majority of Americans agree,” McConnell said.  “In both public surveys and at the ballot box, Americans have rejected the law’s mandate that they must buy government-approved health insurance, and I hope the Supreme Court will do the same.”

Despite Republicans’ insistence that the ACA is unconstitutional, only one of the four federal appeals courts that have heard cases on healthcare reform has struck down even a part of the law.

One of the ACA’s most vocal opponents is Karen Harned of the National Federation of Independent Business, who said: “We are confident in the strength of our case and hopeful that we will ultimately prevail.  Our nation’s job-creators depend on a decision being reached before the harmful effects of this new law become irreversible.”

Legal experts believe that the healthcare vote will be close on the nine-member court, which is comprised of five conservatives and four liberals.  Moderate conservative Justice Anthony Kennedy, who often is the swing vote, and could well cast the decisive vote.  Paul Heldman, senior analyst at Potomac Research Group, which provides Washington policy research for the investment community, said he still leaned toward the view that the law’s requirement that individuals buy insurance will be upheld.  “We continue to have a high level of conviction that the Supreme Court will leave much of the health reform law standing, even if finds unconstitutional the requirement that individuals buy coverage,” he wrote.

An impressive 5 ½ hours of oral arguments will be held in late February or March. The primary issue is whether the “individual mandate” section – which requires virtually all Americans to buy health insurance by 2014 or face fines — is an improper exercise of federal authority.  According to the states, if that linchpin provision is unconstitutional, the entire law must be also be overturned.  Joining Florida in the challenge are Alabama, Alaska, Arizona, Colorado, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Washington, Wisconsin and Wyoming.  Virginia and Oklahoma have filed their own challenges, along with other groups and individuals opposed to the law.

According to USA Today’s Joan Biskupic, “The leading question before the justices is whether in requiring most Americans to buy insurance, Congress exceeded its power to regulate interstate commerce.  The case is on track to be heard by March, and a ruling would come by the end of June, just before the Republican and Democratic conventions for the 2012 presidential election. The law known as the Affordable Care Act, intended to extend medical care nationwide, is the centerpiece of the Obama domestic agenda, and all major GOP presidential candidates oppose it.  The legal challengers, including a group of 26 states, say the law went beyond federal power and, if allowed to stand, would hurt small businesses and compromise individual choices on medical care.”

Writing in The Hill, Sam Baker says that “As they weigh the mandate, the justices will have to consider how it affects other parts of the law.  If they find the coverage requirement unconstitutional, they will have to decide whether to strike it down on its own or instead strike down the entire law.  The justices also will determine whether a separate federal law bars them from reaching a decision on the mandate before it takes effect.  People can’t challenge a tax before they have to pay it, and the Obama administration has defended the mandate by invoking Congress’s taxing power.  But it has also said the court should bypass procedural issues and rule directly on the mandate.”

Luck of the Draw: Virginia Appellate Judges Are Likely to Favor the Affordable Care Act

Tuesday, May 17th, 2011

As the Patient Protection and Affordable Care Act (ACA) heads to the 4th U.S. Circuit Court of Appeals, President Barack Obama may have lucked out.  Of the three judges who were randomly chosen to hear the case, two are Obama appointees; the third was appointed by President Bill Clinton.  In one case, the federal government is appealing a ruling that struck down the law’s requirement that all Americans must purchase health insurance or pay a penalty.  In the second case, Liberty University is appealing another judge’s ruling that upheld the healthcare reform law.

It’s highly likely that this court will uphold the ACA, because the rulings in the lower courts have closely tracked the judges’ judicial ideology.  Conservatives tend to strike down the law; liberal judges tend to uphold it.  After this, it’s likely that the Virginia attorney general will take the case to the United States Supreme Court, where swing voter Justice Anthony Kennedy could make or break the fate of the ACA.

Acting U.S. solicitor general Neal Katyal, who is representing the Obama administration, said that the law targets “problems in the national healthcare system that states individually have proven unable to solve effectively.”  The legislation, intended to make healthcare coverage more affordable for Americans, also reduces the current uncompensated care that results in higher premiums for people who already have insurance.  “The Constitution grants Congress the power to regulate conduct that substantially affects interstate commerce,” Katyal wrote in his brief.  “The requirement that participants in the health care market have insurance to pay for the services they consume is thus a quintessential exercise of the commerce power.”

The ACA’s supporters maintain that the law falls within Congress’s power to regulate interstate economic activities.  Opponents claim that the ACA represents a dramatic expansion of the federal government’s authority under the Constitution’s commerce clause.  The law lets the government regulate economic activities and also the inactivity of those who might opt not to purchase health insurance.

“The purpose of health insurance is to pay for expenses incurred in the health care services market,” Katyal said in his brief.  “That some participants in the healthcare market may be ‘passive’ in the insurance market – in the sense that they may not currently have insurance – has no constitutional significance.”  Buying and selling health insurance is a national economic activity, according to Katyal.  “The modern health care system operates across state boundaries. Most health insurance is sold or administered by national or regional companies that operate interstate, and pays for medical supplies shipped in interstate commerce,” he said.

E. Duncan Getchell, Virginia’s solicitor general, argued in his brief that the federal healthcare reform law’s individual mandate clashes with a state law seeking to protect the right of Virginians to decide for themselves whether to buy health insurance or remain uninsured.  “Because the claimed power to order a citizen to purchase a good or service from another citizen has no principled limit, it violates the … limits of the commerce clause,” Getchell wrote.

“The fact that the government is sending the solicitor general of the United States to argue the case does reflect how important the government considers this case to be,” said Lisa Blatt, an appeals lawyer at Arnold & Porter LLP in Washington.  Typically, the U.S. solicitor general usually only argues cases before the U.S. Supreme Court.