Monday, December 2, 2013
Supreme Court Declines to Disturb Employer Mandate
The Supreme Court today declined to review a Fourth Circuit ruling upholding the Affordable Care Act's employer mandate. Our post on the Fourth Circuit ruling is here.
The order rejecting cert. means that the Fourth Circuit ruling stays on the books and that the Supreme Court won't take on the employer mandate (now, and likely ever). The Obama administration delayed implementation of the mandate (sparking bills in Congress and lawsuits to override the delay); it's now scheduled to go into effect in 2015 (and not January 1, 2014, as the law seems to require).
Recall that the Fourth Circuit ruled in Liberty University v. Lew that Congress had authority under both the Commerce Clause and the Taxing Clause to impose a mandate on employers to provide health insurance to employees. The case was notable, because it held that Congress had authority under the Commerce Clause to impose the employer mandate, even though five justices on the Supreme Court ruled in NFIB v. Sebelius that Congress lacked authority under the Commerce Clause to impose the individual mandate. The Fourth Circuit said that in enacting the employer mandate Congress wasn't creating commerce to regulate it (as Chief Justice Roberts wrote in NFIB about the individual mandate). Instead, the Fourth Circuit said that the employer mandate was just another federal regulation on the terms and conditions of employment between an employee and an employer, who is already in interstate commerce.
Many thanks, Mike. Yes, indeed. And that's good reason to believe that Chief Justice Roberts's opinion on the Commerce Clause in NFIB is his alone, and does not constitute a holding of the Court. The Fourth Circuit in Liberty University also seemed to recognize this: it wrote in footnote 7 that "We express no opinion as to whether the limitation on the commerce power announced by five justices in NFIB constitutes a holding of the Court." I tried to make a similar point here: http://lawprofessors.typepad.com/conlaw/2012/06/did-chief-justice-roberts-craft-a-new-more-limited-commerce-clause.html
Posted by: Steven D. Schwinn | Dec 2, 2013 6:10:33 PM
While five Justices said that the ACA was beyond the commerce clause power of Congress, four of them declined to join the CJ. The four dissenters simple dissented. Thus, the only decision of the Court was the group of five that joined together to hold that the ACA mandate was within the tax power of Congress.
Posted by: Mike Zimmer | Dec 2, 2013 4:46:29 PM