The Patient Protection and Affordable Care Act: Legal Review The Learning Institute for Elders (“LIFE”) at the University of Central Florida March 25, 2014 By: Richard S. Dellinger, Esq., richard.dellinger@lowndes-law.com © 2011 Lowndes, Drosdick, Doster, Kantor & Reed, P.A. All Rights Reserved

Jan. 8, 2013: Constitutional History Image of constitution w/gavel

The Health Care Debate

The Patient Protection and Affordable Care Act Signed into law March 23, 2010 Individual mandate. Insurance provided through employer, Medicaid, Medicare, Tricare, private insurance exchange. Tax penalty for uninsured. Insurance exchanges set up to compare policies and buy insurance. Funding for states to do same. Coverage not denied for pre-existing conditions. Employer mandate for 50 full time employees or more or must pay a tax penalty. Medicaid expansion, subsidies to states, lose Medicaid funding if do not expand.

ACA Goals Drive down insurance cost by increasing number of people covered. Increase by expanding eligibility for Medicaid (133% above poverty level). Increase by setting up exchanges to sell insurance and penalizing those who do not enroll.

ACA Implementation Problems States not cooperating with state based exchanges and Medicaid expansion. Federal exchange (healthcare.gov) website problems. Some prior plans not meet minimum levels, forcing people out of their plans. Businesses downsizing to part time to avoid 50 full time employees.

National Federation of Independent Businesses v. Sebelius Individual Mandate: Minimum essential health coverage required for all. Provided by employer, government or purchased from private company through exchange. Medicaid Expansion: States must expand Medicaid to up to 133% of poverty level or lose all federal Medicaid funds.

National Federation of Independent Businesses v. Sebelius Florida and 12 other states filed lawsuit challenging ACA in Tallahassee on the date ACA signed into law. Later joined by 13 other states and National Federation of Independent Businesses. Argue individual mandate exceeds Congress’ authority under Constitution.

Article I, Article II, Article III

Congress’ (Enumerated) Powers Lay and Collect Taxes to pay debts and provide for general welfare of US (Sec. 8 cl. 1) Borrow Money (Sec. 8 cl. 2) Rules of Nationalization and Bankruptcy (Sec. 8 cl. 4) Coin Money (Sec. 8 cl. 5) Establish Post Offices (Sec. 8 cl. 7) Raise and Support Armies and Navy (Sec. 8 cl. 12-13)

Congress’ (Less Enumerated) Powers To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes (Sec. 8 cl. 3) (“Commerce Clause”).

Commerce Clause Wickard v. Filburn (1942) Federal government can regulate quantity of wheat a farmer can grow for private consumption in order to stabilize wheat prices on the national market.

Congress’ (Less Enumerated) Powers To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof (Sec. 8 cl. 18) (“Necessary and Proper” or “Elastic Clause”)

Necessary and Proper Clause McCulloch v. Maryland (1819) “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution,are constitutional.”

Necessary and Proper

The Elastic Clause

Lower Court Decisions District Court: Congress has no power to require individual mandate. Eleventh Circuit: No power. No tax so not within tax power. Not commerce so not within commerce power. Individual mandate struck down.

Lower Court Decisions Sixth Circuit and DC Circuit: Valid Exercise of Commerce Power. Fourth Circuit: Can not consider future restraint on taxing power. Must pay tax first. Eleventh Circuit: Medicaid expansion valid exercise of Spending Power.

Supreme Court Review Sonia Sotomayor, Stephen Breyer, Samuel Alito, Elena Kagan Clarence Thomas, Antonin Scalia, John G. Roberts, Anthony Kennedy, Ruth Bader Ginsburg,

Supreme Court Justices Sonia Sotomayor, Stephen Breyer, Samuel Alito, Elena Kagan Clarence Thomas, Antonin Scalia, John G. Roberts, Anthony Kennedy, Ruth Bader Ginsburg,

Supreme Court Evolution Source: New York Times, July 24, 2010 and 2 law professors

National Federation of Independent Businesses v. Sebelius John G. Roberts, Stephen Breyer, Elena Kagan Ruth Bader Ginsburg, Sonia Sotomayor, Antonin Scalia, Anthony Kennedy Clarence Thomas, Samuel Alito

National Federation of Independent Businesses v National Federation of Independent Businesses v. Sebelius (Roberts Opinion) Individual mandate provisions of the ACA which impose a tax on those who do not purchase health insurance is within Congress’ power to tax (IIIC) (majority) Law remains valid and states may opt in.

National Federation of Independent Businesses v National Federation of Independent Businesses v. Sebelius (Roberts Opinion) Medicaid expansion. Threat to withhold all Medicaid funding to a state who refuses to participate in the federal regulatory program is overly coercive and therefore exceeds Congress’ powers under the Spending Clause in Art. I, Sec. 8, cl. 1 (IVA) Law remains valid and states may opt in.

National Federation of Independent Businesses v National Federation of Independent Businesses v. Sebelius (Scalia, Kennedy, Thomas, Alito Opinion) Medicaid expansion. Threat to withhold all Medicaid funding to a state who refuses to participate in the federal regulatory program is overly coercive and therefore exceeds Congress’ powers under the Spending Clause in Art. I, Sec. 8, cl. 1 (IVA) Entire law can not be carried out without this provision.

National Federation of Independent Businesses v National Federation of Independent Businesses v. Sebelius (Roberts, Scalia, Kennedy, Thomas, Alito Opinion) Congress may not rely upon the Commerce Clause to force individuals into commerce (IIIA)(also dissent Scalia, Kennedy, Thomas, Alito so majority) Insurance regulation is not justified under the Necessary and Proper Clause because not a component of a valid exercise of Commerce Clause, so can not be incident to it (IIIA)(also dissent Scalia, Kennedy, Thomas and Alito so majority)

National Federation of Independent Businesses v National Federation of Independent Businesses v. Sebelius (Ginsburg Opinion) Individual mandate provisions are valid exercise of the commerce clause power because uninsured impacts large market for health insurance which everyone will ultimately participate Individual mandate provisions are a valid exercise of necessary and proper powers Medicaid expansion and decline to fund those who do not is a valid exercise of spending power.

Adult Non-Parents: No Coverage Medicaid Expansion Attempting to expand to all between 0% and 133% of poverty line. Florida currently provides: Adult Parents: 31% ($289/ mo) Adult Non-Parents: No Coverage Children (0-1): 206% ($1972/ mo) Children (1-5): 140% ($1341/ mo) Children (6-18): 133% ($1341/ mo) (Source: Center for Medicaid adn CHIP Services Publication at medicaid.gov)

Federal Poverty Line Household Size 100% 133% 150% 200% 250% 300% 400% $11,670 $15,521 $17,505 $23,340 $29,175 $35,010 $46,680 2 15,730 20,921 23,595 31,460 39,325 47,190 62,920 3 19,790 26,321 29,685 39,580 49,475 59,370 79,160 4 23,850 31,721 35,775 47,700 59,625 71,550 95,400 5 27,910 37,120 41,865 55,820 69,775 83,730 111,640 6 31,970 42,520 47,955 63,940 79,925 95,910 127,880 7 36,030 47,920 54,045 72,060 90,075 108,090 144,120 8 40,090 53,320 60,135 80,180 100,225 120,270 160,360

Medicaid Expansion

Additional Cases Do religious owners of a family business have free exercise rights that are violated by the application of the contraceptive coverage mandate of the ACA? Conestoga Wood Specialties Corp. v. Sebelius, (3rd Cir) and Sebelius v. Hobby Lobby Stores, Inc. (10th Cir) Split Argument set for March 25, 2014

Executive Actions Treasury Department delays reporting requirements for businesses with 50 plus employees implementing the plans until 2016 (July 2, 2013). Allowing a hardship exemption or extension in current coverage for those given notice that their existing policies do not comply (Dec. 19, 2013).

Source: http://www.brookings.edu/

Questions