Trouble in Galt's Gulch: Healthcare Edition

[Unabogie]

Linky...

The woman chosen to represent the legal challenge to the Obama administration's health-care overhaul filed for bankruptcy in September after her business failed, a move that could pose problems for the high-profile lawsuit.

The suit, brought by 26 states and joined by the National Federation of Independent Business, a small-business lobby group, is set to be heard by the Supreme Court next year. It relies in part on the story of Mary Brown, an auto-repair-shop owner who argued in court filings she would have had to divert funds from her business to comply with the law's requirement that, beginning in 2014, most Americans obtain coverage or pay a penalty.


Ms. Brown closed her five-year-old Panama City, Fla., shop, Brown & Dockery Inc., in August, the same month she and the state coalition prevailed in front of the 11th U.S. Circuit Court of Appeals. On Sept. 30, Ms. Brown and her husband filed for personal bankruptcy. They later listed $62,972.04 in debts, most of which were business expenses.

So with her not actually owning a business to be harmed, she can't really claim to be a victim of the onerous law that was threatening to ruin her business.

But the best part of the article?

Ms. Brown, 56 years old, had health-care insurance for herself and her husband several years ago but dropped it because the $1,100-a-month cost was prohibitive, she said in an interview. Referring to the health overhaul, she said: "No one has the right to try to control how you spend your money."

Ms. Brown, who is receiving unemployment benefits, now spends her time caring for her parents, job hunting and tending to her garden crowded with birdbaths and wooden butterflies. Her next project, she says, is to paint an old bowling ball to resemble a ladybug.

Isn't that precious? She spends her days gardening while taking money from the Evil Government, paid for by the Noble 53%.

Now my question is: why didn't she just invent some new kind of steel like all Galtians do in this situation?

 

[The Central Scrutinizer]

Obamacare is so evil that it drove her out of business before it even went into effect!

 

[Unabogie]

Obamacare is so evil that it drove her out of business before it even went into effect!

You kid, but I'm taking odds on which right wing pundit is the first to make that claim. My bet is on Erick, Son of Erick.

 

[cwalner]

So with her not actually owning a business to be harmed, she can't really claim to be a victim of the onerous law that was threatening to ruin her business.

Not relevant. Roe v Wade was not heard by the Supreme Court until well after Roe had given birth. There is precedent in allowing a suit challenging the constitutionality of a law if it can be reasonably be inferred that there is a class of people effected by the law, even if the original litigant is no longer in that class. In Roe v Wade, the class was pregnant women, in this case it is small business owners.

 

[Unabogie]

Not relevant. Roe v Wade was not heard by the Supreme Court until well after Roe had given birth. There is precedent in allowing a suit challenging the constitutionality of a law if it can be reasonably be inferred that there is a class of people effected by the law, even if the original litigant is no longer in that class. In Roe v Wade, the class was pregnant women, in this case it is small business owners.

Not according to this article. Apparently Judge Vinson cited Mary Brown's standing as one of the key reasons the lawsuit could proceed, since now there will be no one subject to the mandate to sue.

Furthermore, some other nuggets.

http://www.tnr.com/blog/jonathan-co...uit-nfib-mary-brown-bankruptcy-court-standing

But the more interesting and, to my mind, more important implication is what Brown’s bankruptcy says about the actual merits of the lawsuit – and, ultimately, the legal rationale for the Affordable Care Act. Based on available information, it may illustrate almost perfectly why the law is necessary – and constitutional.


The legal case against the health care reform really boils down to one question: Does the government infringe upon your freedom when it demands that you obtain insurance or pay a penalty, as long as you have the money to afford it? Or is the government merely asking you to help bear the cost of medical care you will inevitably consume – a cost that, otherwise, the rest of society would have to pick up, chiefly in the form of higher taxes, higher insurance premiums, and lost income?


Brown adheres to the former point of view: “No one has the right to try to control how you spend your money,” Brown told the Journal. But the bankruptcy filing that she and her husband made, and which TNR obtained via online court records, lists among the couple's unsecured creditors several providers of medical care – a hospital and a physician group in Florida; an anesthesiology group based in Mississippi; and an eye care center in Alabama. The total, based on the court filing, appears to be a little less than $5,000. The bankruptcy filing also indicates that the couple has $400 in expected monthly "medical and dental" expenses.

Her whole rationale for the lawsuit was that no one should have to buy health insurance (or more to the point, health care) if they don't want to. Yet her own story - bankruptcy, loss of insurance due to high premiums, and a large, unpaid medical bill at the end of it all - sort of undercuts her argument in a very ironic way.

The government is claiming that we all consume health care at some point, and regulating how that occurs is in everyone's best interest. Mary Brown disagreed, then left us all with her bill to pay in more ways that one.

 

[cwalner]

Her whole rationale for the lawsuit was that no one should have to buy health insurance (or more to the point, health care) if they don't want to. Yet her own story - bankruptcy, loss of insurance due to high premiums, and a large, unpaid medical bill at the end of it all - sort of undercuts her argument in a very ironic way.

The government is claiming that we all consume health care at some point, and regulating how that occurs is in everyone's best interest. Mary Brown disagreed, then left us all with her bill to pay in more ways that one.

This I agree with, however, I stand by my earlier comment and the precedent set in Roe v Wade regarding standing.

In short, while these events severely weaken the argument against the law, I do not see it as eliminating standing.

 

[Unabogie]

This I agree with, however, I stand by my earlier comment and the precedent set in Roe v Wade regarding standing.

In short, while these events severely weaken the argument against the law, I do not see it as eliminating standing.

I am not a lawyer so I can't claim any knowledge of this, but the article has some scholars disagreeing with you. They say that the anti-healthcare side has to find a new business to act as a plaintiff, since the law hasn't yet affected Mary (the provisions she was fighting won't take effect until 2014), so she can't claim any harm, even future harm. She has no business to harm. Didn't Roe at least have a claim that she had a pregnancy in fact, not in some future reality?

 

[Dunstan]

Not relevant. Roe v Wade was not heard by the Supreme Court until well after Roe had given birth. There is precedent in allowing a suit challenging the constitutionality of a law if it can be reasonably be inferred that there is a class of people effected by the law, even if the original litigant is no longer in that class. In Roe v Wade, the class was pregnant women, in this case it is small business owners.

Yes, but the standing rule in Roe is more of an exception to standing doctrine than the rule itself. The Court invoked that exception because otherwise it would be close to impossible for any one plaintiff to litigate a case through all the appellate phases without losing standing. As the Roe opinion explains:

The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated. United States v. Munsingwear, Inc., 340 U.S. 36 (1950); Golden v. Zwickler, supra; SEC v. Medical Committee for Human Rights, 404 U.S. 403 (1972).

But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). See Moore v. Ogilvie, 394 U.S. 814, 816 (1969); Carroll v. Princess Anne, 393 U.S. 175, 178 -179 (1968); United States v. W. T. Grant Co., 345 U.S. 629, 632 -633 (1953).

This "capable of repetition, yet evading review" exception isn't limited to pregnancy cases, but it's not clear to me that it would be applicable here. It's a simple fact of human biology that pregnancies don't last (much) more than nine months; it's not an inevitable fact that every business owner (or even most) who is or will become subject to the Affordable Care Act will close up shop during the course of litigation.

I agree with you that it's unlikely to matter much in the end, because by granting cert on as many issues as it did, the Court has pretty clearly signaled its intention to rule on these issues. I agree with Professor Fallon (quoted in the article) that the Court will find that someone has standing, and will reach the merits -- though I wouldn't be surprised to see one or two justices punt and decline to join the merits opinion.

 

[cwalner]

Yes, but the standing rule in Roe is more of an exception to standing doctrine than the rule itself. The Court invoked that exception because otherwise it would be close to impossible for any one plaintiff to litigate a case through all the appellate phases without losing standing. As the Roe opinion explains:

Thank you for the clarification. I remember this issue from a dramatization of the Roe v Wade case but did not recall this being ruled as an exception, not a precedent.

Seeing as you are actually a lawyer and seem to know what you are talking about, does the fact that the SC already gave it certification have any effect. Can they rescind cert because the plaintiff lost standing, or does the original cert stand and they review the case on the merits?

 

[Aoidoi]

LinkyIsn't that precious? She spends her days gardening while taking money from the Evil Government, paid for by the Noble 53%.

To be fair, Unemployment Insurance is generally paid for by private companies paying into it, rather than the Evil Government who only administers it. So she probably paid into it with her small business prior to getting payments (I dunno how it works for small businesses or bankrupt ones). Though I suppose the laws forcing companies to pay into it do come from the Evil Government, much like the new health insurance requirements.

I'm not sure if it's hypocritical to take money from a program while arguing a similar program is unconstitutional. If nothing else UI is typically state run, so I guess there's an argument for consistency in there somewhere.

 

[Dunstan]

Thank you for the clarification. I remember this issue from a dramatization of the Roe v Wade case but did not recall this being ruled as an exception, not a precedent.

Seeing as you are actually a lawyer and seem to know what you are talking about, does the fact that the SC already gave it certification have any effect. Can they rescind cert because the plaintiff lost standing, or does the original cert stand and they review the case on the merits?

Standing is a jurisdictional issue, meaning (among other things) that it can be brought up at any time (in the trial court or on appeal), can't be waived or stipulated to by the parties, and can (in fact, must) be considered by the court itself even if no party disputes it. Standing must exist at every stage of the process up to and including the Supreme Court, and for that matter throughout the Court's consideration of the matter.

So yes, the Court could dismiss its own writ of certiorari (it's often referred to as a DIG: Dismiss as Improvidently Granted; the Court DIGs cases for a variety of reasons when it appears they are not as suitable for SCOTUS review as might have originally appeared) before the parties even get to the briefing or oral argument stage. Or the Court could take briefing and argument on the standing issue, either separately or combined with the merits issue, and issue an opinion that addresses standing (and, if it finds it exists, the merits). If I recall correctly, there's at least one standing issue already included in the grant of certiorari.

 

[Unabogie]

To be fair, Unemployment Insurance is generally paid for by private companies paying into it, rather than the Evil Government who only administers it. So she probably paid into it with her small business prior to getting payments (I dunno how it works for small businesses or bankrupt ones). Though I suppose the laws forcing companies to pay into it do come from the Evil Government, much like the new health insurance requirements.

I'm not sure if it's hypocritical to take money from a program while arguing a similar program is unconstitutional. If nothing else UI is typically state run, so I guess there's an argument for consistency in there somewhere.

That's not exactly true. UI is heavily subsidized by the Federal Government during a recession. It's extended by many months to take care of people who become unemployed long term, like Ms. Brown. Even if her personal UI has not yet been extended, the fact that the program is still there at all is due to the Feds propping it up.

ETA: Some info on this.

http://money.cnn.com/2011/12/05/news/economy/unemployment_benefits_extension/index.htm

 

[Aoidoi]

That's not exactly true. UI is heavily subsidized by the Federal Government during a recession. It's extended by many months to take care of people who become unemployed long term, like Ms. Brown. Even if her personal UI has not yet been extended, the fact that the program is still there at all is due to the Feds propping it up.

ETA: Some info on this.

http://money.cnn.com/2011/12/05/news/economy/unemployment_benefits_extension/index.htm

Sure, the emergency extensions are effectively federal welfare rather than actual privately funded unemployment insurance. But that doesn't really speak to the constitutionality of the federal government propping up state programs (which is really about as old as the government with it's taking on of state debts near the beginning) vs. a federal mandate for health insurance. I'm not sure of any precedent for the latter, though I could certainly be missing something (Selective Service, maybe?) .

Of course, I haven't really heard any explanation for how it wouldn't be covered under the Commerce clause. Health care seems pretty clearly to involve interstate commerce, unless someone has a good argument against that I don't see how the suit has merit. Wouldn't be the first time I was confused about legal reasoning, though.

 

[Unabogie]

Sure, the emergency extensions are effectively federal welfare rather than actual privately funded unemployment insurance. But that doesn't really speak to the constitutionality of the federal government propping up state programs (which is really about as old as the government with it's taking on of state debts near the beginning) vs. a federal mandate for health insurance. I'm not sure of any precedent for the latter, though I could certainly be missing something (Selective Service, maybe?) .

Of course, I haven't really heard any explanation for how it wouldn't be covered under the Commerce clause. Health care seems pretty clearly to involve interstate commerce, unless someone has a good argument against that I don't see how the suit has merit. Wouldn't be the first time I was confused about legal reasoning, though.

My comment about Ms. Brown being on UI was to point out how people like her claim to be anti-government welfare. They want to picture themselves as rugged individualists. The 53% that make it all possible for the rest of the dregs. A person like that shouldn't be taking handouts from the Feds under any circumstances. She should be rethinking the nature of architecture and tuning out the Second Handers of the world. And yet here she is, taking advantage of the kind of program she railed against at her Tea Party rallies. And so a person on the dole, leaving $5000 in unpaid medical bills, is the lead plaintiff in a case that purports to be all about self reliance. I just found that ironic.

 

[Ziggurat]

I am not a lawyer so I can't claim any knowledge of this, but the article has some scholars disagreeing with you. They say that the anti-healthcare side has to find a new business to act as a plaintiff, since the law hasn't yet affected Mary (the provisions she was fighting won't take effect until 2014), so she can't claim any harm, even future harm. She has no business to harm. Didn't Roe at least have a claim that she had a pregnancy in fact, not in some future reality?

I don't think you can categorically say that there wasn't any harm just because she no longer has a business and the mandate provision hadn't entered into effect. In particular, future laws will have an effect on projected future viability of a business. And that projected future viability could very easily have affected her ability to, for example, get a loan from a bank for her business, even well before the law comes into effect. The bankruptcy of her business might be the harm here, which would giver her standing, not remove it.

Not that this really matters: one way or another, Obamacare is going to the Supreme Court. I don't see why it matters which case gets it there, and delaying that by dismissing one case on standing isn't really a victory for defenders. What defenders need is a judgment by the court that it is constitutional, not a short delay of judgment on procedural grounds.

 

[Aoidoi]

My comment about Ms. Brown being on UI was to point out how people like her claim to be anti-government welfare. They want to picture themselves as rugged individualists. The 53% that make it all possible for the rest of the dregs. A person like that shouldn't be taking handouts from the Feds under any circumstances. She should be rethinking the nature of architecture and tuning out the Second Handers of the world. And yet here she is, taking advantage of the kind of program she railed against at her Tea Party rallies. And so a person on the dole, leaving $5000 in unpaid medical bills, is the lead plaintiff in a case that purports to be all about self reliance. I just found that ironic.

Oh, I agree and find a lot of peoples stances on government programs amusingly inconsistent. My favorite being the "keep big government out of my Medicare" type sentiments. I just didn't see her as particularly egregious, which probably says more about the political landscape than I care to ponder.