Last week, I did some quick thoughts based on the Supreme Court’s opinion in Ramos v. Louisiana. This week, the Court issued a few opinions that also raise some interesting questions about how the Court will approach some future issues (including in cases it has already granted) and how it has approached some cases it has already decided.  The two cases I’ll focus on are Maine Community Health and New York State Rifle & Pistol Association. The Court issued a third opinion today – Georgia Public Resource – on a copyright issue with an interesting split. But I don’t have any tea leaves to divine from that opinion except to wonder, as Marty Lederman speculated on Twitter, whether Justice Thomas was initially assigned the majority opinion and lost it because some Justice changed their vote.

Maine Community Health concerns the federal government’s continuing obligation to pay insurers under the risk corridor program. I wrote about this case for NBC back in December; briefly, some background:

Currently the ACA requires insurance companies to sell policies to individuals with preexisting conditions at similar rates as policies to individuals who are healthy. Since insurance companies can lose a lot of money from this requirement, the federal government established the “risk corridor” program as part of the law. The program promises that the federal government pays insurance companies for the losses they incurred over a few years.

Maine Community Health is significant on its own – the case involves more than $10 billion and the federal government’s reputation as a credible business partner. (If you promise someone to pay them… it’s generally a good idea to do so if you want people to do business with you in the future!) But the case also has some striking parallels with another piece of ongoing litigation involving the Affordable Care Act—the challenge to the “mandate” that the Supreme Court is going to take up in the fall.

Both cases involve Republicans’ legislative efforts to sabotage the ACA: In Maine Community Health, the then-Republican-controlled House passed an appropriations rider stating that none of the funds in the appropriations bill or a more general Medicaid fund could go toward risk corridor payments.  In the other ACA case involving the mandate, the then-Republican-controlled Congress zeroed out the tax penalty for failing to purchase health insurance: Now individuals who do not purchase health insurance pay a $0 tax.

Both cases involve tortured statutory interpretation claims that go like this: Republican legislators snuck in – though no one noticed at the time! – poison pills that diabolically blew up the entire ACA (instead of just destabilizing it) even though Republicans tried and failed to enact the more full blown demolition efforts into law (because they didn’t have the votes to do so).

In Maine Community, Republicans introduced a bill that would have prohibited the federal government from using its own money to pay insurers under the risk corridor program. But that bill failed — there weren’t enough votes to pass it. So instead they enacted an appropriations rider. And the Trump administration argued that the appropriations rider was actually a prohibition on the federal government *ever* paying the risk corridor money. (It pointed to a statement to this effect in the legislative history from a Republican committee chairperson. Yay, textualism!)

In the other ACA case involving the mandate, the Trump administration is arguing that, by zero-ing out the tax penalty for failing to purchase health insurance, the Republican-controlled Congress (with the President’s support) actually strengthened the mandate by imposing a freestanding legal obligation to purchase health insurance (even though there was no such obligation before!). The argument is stunningly stupid for reasons I’ve explained before, as have Nick Bagley and Marty Lederman. (In brief: The amendment did not alter the operative provision of the statute, which the Supreme Court interpreted in NFIB v. Sebelius; and also … you really think the Republicans mobilized around STRENGTHENING THE MANDATE??? And made the individuals exempt from having to pay the penalty … law breakers?) But the U.S. Court of Appeals for the Fifth Circuit, at the Trump administration’s urging, adopted this silly argument – after one judge speculated, at argument, whether Congress thought “a ha! This is the silver bullet to kill Obamacare!” (Also, like in Maine Community Health, the Republican-controlled Congress considered a bill that would have eliminated the mandate together with other provisions in the ACA that protected people with preexisting conditions but … they didn’t have the votes to pass that bill. So they just opted to zero out the tax penalty, which the Trump administration now insists requires courts to invalidate the entire ACA. For more on that, read this.)

If Maine Community Health is any indication, the other ACA case involving the challenge to the mandate should likewise end with a thorough drubbing of the federal government and court of appeals’ absurd arguments. Maine Community was 8-1, with only Justice Alito dissenting. (Sigh.) 

But given the vote breakdown in the Second Amendment case, New York State Rifle & Pistol Association (6-3, with Justice Thomas, Justice Gorsuch, and Justice Alito dissenting), the other ACA case may end up being a lot closer than Maine Community.  Why do I say that?  Because in the more politically salient/ideologically salient case (NYSRPA), a greater number of Justices were … unwilling to resist the siren’s temptation and instead follow the law.  NYSRPA involved a challenge to a New York City ordinance that prohibited transporting guns to second residences outside the City or to a vast majority of firearms ranges. When the plaintiffs challenged the ordinance, they sought an injunction against its enforcement. After the Supreme Court granted certiorari, New York City repealed the ordinance (through its administrative rulemaking process) and New York state enacted a law prohibiting the city from adopting the original, challenged ordinance again.

That is the definition of a moot case. (I wrote about this issue in The Atlantic here.) The plaintiffs sought to prohibit New York City from enforcing a law that … New York City can no longer enforce because it no longer exists (and because the City is prohibited from reenacting the ordinance!). Yet three Justices said the case isn’t moot. And if they’re willing to say that, then what is going to stop them from saying “yes the Republican controlled Congress DID strengthen the mandate instead of just zeroing out the tax penalty for failing to purchase health insurance and yes that DOES mean we have to invalidate the rest of the ACA as well!” 

Maine Community Health is a nice reminder that sometimes the law is clear enough to generate an answer – even when that answer runs counter to a judge’s policy or partisan preferences. But NYSRPA is an equally important reminder that, even when the law is that clear, sometimes that won’t be enough.  (And more on NYSRPA in a bit but this post got really long!)

@LeahLitman

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