Wednesday, April 9, 2014
Jessica Mason Pieklo writes over at RH Reality Check about the pair of challenges to the Affordable Care Act set for oral argument next month (on May 8) in the D.C. Circuit. One of those cases challenges the government's accommodation to the so-called contraception mandate for religious nonprofits--the same issue in the Little Sisters case and, more recently, Notre Dame's case at the Seventh Circuit. (Those rulings were on injunctions against the accommodation pending appeal. Recall that the Supreme Court issued an order in the Little Sisters case, allowing the organization simply to write a letter to the HHS Secretary stating its religious objection to the contraception mandate, pending appeal on the merits to the Tenth Circuit. In contrast, the Seventh Circuit denied Notre Dame's request for an injunction pending appeal. The difference between the two cases: Notre Dame had already complied with the government's accommodation (and the court couldn't undo its compliance), whereas Little Sisters had not.)
The other case, Sissel v. HHS, is less well known. It challenges the universal coverage provision, or the so-called individual mandate. Plaintiffs in the case argue that as a tax (recall the Court's ruling in the ACA case) the provision had to originate in the House of Representatives under the Origination Clause. But it originated in the Senate. Plaintiffs say it's therefore invalid.
Pieklo writes that President Obama's recent appointees will have an impact on the court, and on these cases. That's because the panel that will hear arguments in these cases next month includes Judge Nina Pillard and Judge Robert Wilkins, the recent Obama appointees that were held up in the Senate but then confirmed after Senate Democrats used the nuclear option and disallowed a filibuster of federal court nominees (except Supreme Court nominees). Judge Rogers is also on the panel.