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


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.

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.

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  • chrisinva

    Which is to say that the DC Circuit is now dependably leftist, pro-abortion, and anti-Catholic.

    Obama: Mission accomplished.

    No surprise there, really. Elections matter. The hookup culture is unlikely to produce a high number of constitutional conservatives.

    • Arekushieru

      ‘Hookup culture’? Seriously? Are you still living in the 1800s? Where men get to rape and beat their wives into submission without fear of the law? Is THAT what you find so deplorable? Because, I assure you, what you describe with the usage of ‘hookup culture’ is, instead, actually woman’s freedom to not only ENGAGE in sex as frequently and as invested as she wants, as her male counterparts do, but to also REFRAIN from engaging in it. Like I myself do. I’m an Ace, but I assure you if I was born in ‘your time’, I would have at least eight babies by now and on my way to the ninth no matter that *I* wished not to. You see, I’m also tokophobic. That means I would have at least ATTEMPTED to kill myself several times before I even had the first one. Also, affairs were a given, ESPECIALLY in that time, but only men were EXPECTED to have affairs. If a woman had an affair, she was ostracized by her community. And she was ostracized by her community if her HUSBAND had an affair. So, even given that that view has now shifted away from extramarital affairs, I still see I was right, your only problem is that WOMEN are now allowed the same freedoms as DA MANLY MENZZZZ.

      Who is forcing abortions on people through the ACA? They’re not? Oops. Then not Pro-Abortion

      No, we are not anti-Catholic. We are anti-imposing anti-Women views by the Catholic Church. It’s actually the CHURCH that is anti-Catholic. After all, it is imposing ITS views on its CATHOLIC parishioners. OOOOOPPPPPSSS.

      • chrisinva

        Wowie Zowie!

        [Frank Zappa, ~1969]

        • Dez

          Can’t refute her can you?

          • chrisinva

            She’s immune to logic, Dez. I replied on her level, so she could understand me.

          • Dez

            Where’s your logic because I don’t see anything but your baseless claims?

          • chrisinva

            Dez, her piece is a thinly-veiled 60s feminist shriek. I even got the year right.

            Gender “equality”? Stalin announced he supported equal rights for women, to.

            So, he said, “Women to the Salt Mines!”

          • Arekushieru

            “Dez, her piece is a thinly-veiled 60s feminist shriek.”

            What does that have to do with logic (or the lack thereof)? But I’m forgetting, aren’t I, that you couldn’t make a logical argument if your life depended on it. Oh, SNAP.

            That’s not equality. It’s misogyny, at its finest. Because it doesn’t recognize anything other than PHYSICAL similarities and differences. Gender is more than sex, and involves more institutionalized oppressions than differentiating between physical strengths. It seems BOTH you and CBJ have difficulty comprehending that. I wonder why that is….

          • chrisinva

            Feminism is not misogyny! It has a hallowed foundation, from Marx to Gramsci to Marcuse to Simone de Beauvoir. There is no “equality” there — only history’s coronation of those whose consciousness has been raised (in the right direction, of course).

            Curious, isn’t it, that Robespierre, Gramsci, and Camus all asked for the Sacraments and confessed (Camus was killed in a traffic accident on the way to Confession) before they died? And Sartre admitted that he believed in a Supreme Being after all?

            Perhaps this fossil from Woodstock will see the light as well.

            Blessings of Lent!

          • Jennifer Starr

            Fossil from Woodstock? I’m pretty sure that the author of this piece is younger than I am, and I was born in January of ’73. I don’t think you got the year right at all.

          • chrisinva

            It’s all about consciousness, Jennifer! Read up on Marx, Hegel, and Marcuse de Beauvoir, and then look at Betty Friedan’s “The Feminine Mystique.”

            Now be aware that the dialectic (the indispensable concept for understanding feminist thought) moves sometimes quickly, sometimes slowly, and is sometimes frozen in time. That is the situation with the author. I think the year is just right – certainly the era is (the dialectic, remember – I can change my mind any time that the “movement of the concept” requires it!)

          • Jennifer Starr

            So your reference is not really towards the author, but towards the writing style? Interesting. I’ve read de Beauvoir and Friedan and I’m not sure how you’re getting any of that from the content or style of this article. And Marx and Hegel–huh? I’m surprised you didn’t throw Alinsky in there for good measure. Sorry, but to me your ‘analysis’ sounds an awful lot like the same old tired ‘hippie’ ‘bra-burning’ stereotype that conservatives always like to throw at feminist women, including myself, because they imagine that it somehow discredits the message. It doesn’t of course, and I certainly intend no disrespect to feminists who did come of age in the ’60s–they did a lot of great things and I’m certainly grateful to them. But I’m not part of that group and I don’t think Jessica was either. You know, I keep thinking that this stereotype will fade with the passage of time, but I suppose for conservatives that’s a bit too much to hope for.

          • chrisinva

            I agree that the concept is changing all the time, not only as the dialectic demands, but permits. The corruption of language is central to ideology (“equality,” etc.) — it reminds me of the speaker in 1984 who is railing against Eurasia, and rallying the crowd to cheer for Eastasia, Oceania’s ally — when, in the middle of the speech – in the meddle of a **sentence** – he is handed a slip of paper reporting that Eurasia is now our friend, while Eastasia is the enemy.

            He fluidly continues without so much as a broken phrase.

            The dialectic is beautiful!

            The dialectic is ugly.

            Beauty is ugly!

            War is Peace!

            Freedom is slavery!

            Ignorance is strength!

            And we all love Big Brother.

          • Jennifer Starr

            And I think you might have gone off on yet another tangent, as this reply appears to have absolutely nothing to do with my post.

          • chrisinva

            Sorry you think so. Let her who has ears, hear.

          • Jennifer Starr

            I think that should be ‘Let she’. You seem to be striving for maximum pretentiousness while saying very little.

          • chrisinva

            Thanks for your correction – I hit enter too quickly.

            As to Orwell, in my view the Ministry of Truth best represents the ideological character of our own age. So i refer to him not pretentiously, but precisely.

          • fiona64

            I think somebody needs a nap …

          • Shan

            “You know, I keep thinking that this stereotype will fade with the
            passage of time, but I suppose for conservatives that’s a bit too much
            to hope for.”

            Yeah, they just love falling back on the “feminist shriek” thing. IIRC, it’s called gaslighting.

          • Jennifer Starr

            Another one that’s always interesting to hear is when conservatives choose to chide me about my ‘wild, hedonistic lifestyle’. It must be one heck of a lifestyle, too–so wild, in fact, that I have no recollection of ever having lived it :) And yeah, it is gaslighting.

          • goatini

            Chris is also fond of cloistered nuns who still wear the medieval habits, which should give you a good idea of his female ideal: subservient, silent, shrouded.

          • http://plumstchili.blogspot.com/ Plum Dumpling

            Betty Friedan was never a “bra burner.” I was although I did not burn my bra, I threw it away and never wore another one for 20 years. You are full of bovine excrement. Feminist dialectic? Please.

          • chrisinva

            I didn’t say she was. And yes, plenty of feminist ideology embraces the dialectic, although, like communists, Christians, and Democrats, opinions of people calling themselves “feminists” can run the gamut.

          • http://plumstchili.blogspot.com/ Plum Dumpling

            The only folks who say “feminist dialectic” are pretentious pseudo intellectuals and rich girls who went to Barnard. Bugger off. You are stupid and annoying.

          • Arekushieru

            It’s obvious that you have no understanding of feminism, be it historically or comprehensively, whatsoever.

          • goatini

            Chris is a fundamentalist Catholic.

          • Arekushieru

            I am Christian. I was born in 1976. So you cannot be referring to me.

            Many people will confess their ‘sins’ if they’re brought up to believe in an almighty, vengeful, wrathful, sadistic deity.

            Feminism is, and always has been, about women’s rights. It’s about fighting back against the varying oppressions which only women, of all races, colours, cultures, religions, ethnicities and nations, face. Which was my point. That differences in physical strength are not the problem. The ways in which they are used to invariably oppress women ARE. Not surprising that it flew completely over your head.

          • Arekushieru

            Yup, so says an anti-choicer who lacks the ability to make coherent arguments so projects it onto a Pro-Choicer who clearly CAN handle logic.

          • CBJ_Uno

            “her?”

            I’m pretty sure Arekushieru is a man.

          • Arekushieru

            Nope, that’s the wrong gender. Haven’t looked at my picture, have you? Or, if you have, you make all your arguments against bigotry rather moot. Basing a person’s gender on their looks is something only bigots do, after all. Preventing you from doing so is NOT bigotry OR discrimination. Oopsies.

          • CBJ_Uno

            “Basing a person’s gender on their looks is something only bigots do”

            Then 99.99% of people are bigots.

          • Arekushieru

            Nope, gender and sex are two different things. Sad you can’t tell the difference.

          • Jennifer Starr

            No, he can’t.

        • goatini

          1966. Right after Vatican II, to give you a frame of reference.

          • chrisinva

            Hey, as The Who explain in Tommy, I “Came of Age” in ’69, and Frank was right there to help me.

            “Brown shoes don’t make it!” I never wore them again.

            TV Dinner by the pool, sure am glad I finished school
            Life is such a ball I run the world from City Hall!

    • blfdjlj

      Anti-Catholic? Wow… so you’re angry that you can’t impose your religious views on others?

      Well guess what, religion should not matter in formulating civil law. If you accept Catholic religious doctrine, that’s fine with me. Don’t use birth control, don’t have an abortion, I don’t care about it. But you have no right to impose your anti-woman views on others.

    • http://plumstchili.blogspot.com/ Plum Dumpling

      The hookup culture? That went out with HIV. You been in jail or something?

      • chrisinva

        Come to U-MD any weekend night and see for yourself. Big time.

        • Jennifer Starr

          I’m assuming that U-MD stands for University of Maryland. Are you a student there? Are you just guessing how much casual sex goes on or have you taken a poll?

          • chrisinva

            I have several female family and friends there. I mention it because they complain about it.

          • Shan

            What are their complaints?

          • chrisinva

            Briefly: A lot of peer pressure (and not just from men) to be sexually overactive. Drink cheaply (and a lot) in their dorm rooms early in the evening; then go out in groups (cell phone social media tell them where their friends are – which specific bars). They buy one (expensive!) drink (that’s why they drink beforehand) and the pressure begins.

            A lot of depression, some of it suicidal. Loneliness, Some pushback (a student at UNC actually got “Blurred Lines” barred from the DJ at bars near campus because it encourages rape).

            Not everyone participates, of course. But Tom Wolfe’s “I am Charlotte Simmons” is not all fiction.

          • Shan

            And all this is new on college campuses…since when and because of what?

          • Jennifer Starr

            Sounds a bit too moral panicky to me. I’m actually betting that most campuses used to be a whole lot wilder than they are now. As a matter of fact, when I started college in ’91 our campus had become totally dry, meaning that even if you were over 21 you couldn’t get a drink on campus. That doesn’t mean that alcohol wasn’t there, of course–only that it was no longer legal to serve it in campus establishments. Of course when I studied that summer in London the drinking age was 18, but I was the girl who could make one drink last several hours. And I still don’t remember a lot of craziness there.

          • chrisinva

            I’m a pre-Woodstock relic.

            One question arises on another front that puzzles me: increasingly, young men aren’t going to college. In some enrollment is 2:1 female. Do you see that happening? Any guesses as to why?

          • Shan

            Where is enrollment 2:1 female:male and what is that relevant to?

          • Jennifer Starr

            The last time I set foot on a campus was 1995, and I don’t recall a shortage of males.

          • fiona64

            One question arises on another front that puzzles me: increasingly,
            young men aren’t going to college. In some enrollment is 2:1 female.

            Citation needed. Thanks in advance.

          • chrisinva

            Tune in next week!

            Happy Sunday

          • Shan

            Um, yeah. Tootle-oo.

          • fiona64

            It’s just a bunch of pearl-clutching. Nothing more, nothing less.

          • Jennifer Starr

            I’m echoing Shan–I’d be interested in knowing what they’re complaining about.

          • chrisinva

            See mine to Shan, please.

        • http://plumstchili.blogspot.com/ Plum Dumpling

          I have been to college.

  • jeff

    I stumbled on this site b/c I wanted to see where the Halbig case had gone. And I’m glad I did. This article was hilarious. From the “we’ll see how it goes in front of centrist judges” to the “states where conservative governors..refused to set up state exchanges” to “lawsuit cooked up by the Cato Institute” I laughed at the writers incredible slant.
    Let’s look at the judge situation. These appointees couldn’t get on the bench through an age old process of having 60 senators give them a pass for a vote. So the harry changed the rules (something he and his ilk will live to regret sooner rather than later) in order to get some more lefties on the bench. Those judges who couldn’t get a handful of GOP senators to give them a pass are hardly centrist.
    Next: 34 states refused to set up exchanges — THIRTY FOUR. There are currently 29 GOP governors.. but I guess the 16 that did set them up are centrist too.
    Finally: “cooked up” — really? The lawsuit is trying to enforce what the law says – and this bad why? Wasn’t it nancy who said, “we have to pass it and then we’ll find out what’s inside it”? Well, you’re finding out what’s inside it.. (kind of like gas b/4 the inevitable outcome).
    So I thank you, Jessica, for your entertaining article. I hope my comments enlighten some of your readers who either don’t get out much or only get to art shows.

    • Arekushieru

      Um, do you like contradicting yourself? First you say that the judges weren’t centrist because they weren’t selected by a mix of GOP senators as well as leftist senators. THEN you say that a piece of legislation isn’t centrist because a mix of GOP and leftist Governors DO either support OR oppose it. Hmm. Methinks there’s another anti on here that hates logic so projects their LACK of it onto Pro-Choicers who DO possess it.

      The lawsuit is trying to enforce what the law says? Freedom of Religion doesn’t only mean freedom TO religion, but freedom FROM religion. In fact, when the Constitution was written, the latter was what the founding fathers actually focused on. And that’s a CANADIAN telling you that. SFS.

      • jeff

        Only 16 states set up an exchange. Of the 16, only 3 (Nevada, Idaho, and Kentucky) have GOP governors. My point is that the others such as cali, ny, mass, etc are massive libs and would never be considered centrist other than someone who wrote this article.
        With regard to your religious point: The Halbig case has nothing to do w/ religion. It just wants the courts to follow the word of the law.
        a shame that only one Canadian hockey team made the playoffs out of 6. there is always next year though. Best of Luck.

        • Arekushieru

          Um, no, that is NOT what you were saying. You were not separating the 16 into the liberal and GOP states. You were lumping them, TOGETHER. Nice try.

          And, secondly, the fact, that the plaintiffs are complaining about the carrot being dangled in front of them to set up a state exchange, while also complaining about BOTH the tax provisions that are offset by free subsidies AND the penalties that will be imposed by not complying, makes them rather hypocritical. After all, it seems the carrot swings BOTH ways, but they can only focus on one side. And, given that all the States of the plaintiffs, who are conservative, from whom these claims originated, are States that did not set up a State exchange and that the lead plaintiff was deputy director of the center for faith and community-based initiatives, it’s not hard to deduce the reasoning behind why they failed to do so. Religious reasons quite often figure into a denial of health care that can then lead conservatives into further denial of health care, creating, in effect, a catch-22 that serves them MUCH better than their citizens. Which is just absolutely appalling.

          Finally, the Oil KINGS and Rush have remained undefeated, so I will accept the congratulations that you surely meant for them, what with all your knowledgeable data collected on my country. As well as what you must surely know as fact, that Canada is the country with the highest gold medal count ever achieved, when taking all Winter Olympics into consideration on an individual basis.