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From Health Law Daily, February 16, 2016

Scalia’s death certain to complicate current Supreme Court cases, cause election-year clash

By Harold Bishop, J.D. and Melissa Mitchell, J.D.

The unexpected death of Supreme Court Justice Antonin Scalia on February 13, 2016, will not only complicate the Supreme Court’s deliberations on politically sensitive health care cases involving contraceptive coverage and abortion, but likely cause an election-year clash between Democrats and Republicans over his successor. His death will affect cases already voted on by the Court but not published, and cases yet to be decided by an eight-Justice Court, especially in the event of a tie.

Impact on current session. President Obama plans to nominate a successor to Scalia, and the Senate, which has the responsibility to consider judicial nominees, will likely exercise its political prerogatives. With regard to cases where Scalia has already voted but the written decision has not been finalized or publically released, his vote simply does not count. If this changes the outcome of the case, it is just too bad. In this situation, however, the other Justices are able to change their votes if they wish. If there is a four-four tie in a case, the Justices have several options. They can vote to hear the case a second time when a new Justice joins the Court; or uphold the result reached in the lower court with a one-sentence decision. The second option results in a non-precedential opinion that would not bind all federal courts. In an interview with Wolters Kluwer, Professor Jeffrey Shaman, Vincent de Paul Professor of Law and Faculty Director of the Center for Public Interest Law at DePaul University School of Law, noted that the Justices could simply decide to dismiss the case.

Zubik. Zubik v. Burwell, scheduled to be argued on March 23, 2016, now seems more likely to favor the Obama Administration (see Supreme Court will allow Third Circuit ruling to take effect, July 1, 2015). The focus of the case is the accommodation that would keep faith-based groups (hospitals, colleges, and charities) from paying for contraceptives for women covered under their health plans, while still ensuring that they can obtain birth control at no extra cost as required by the Patient Protection and Affordable Care Act’s (ACA) (P.L. 111-148). The faith-based groups claim that the accommodation still makes them involved in providing contraception in violation of their religious beliefs.

Professor Shaman noted that because Zubik is a consolidated case that joined the cases of several different circuits, in the event of a tie vote, each of the decisions in each of the circuits would stand. “This could be a strange result,” Professor Shaman explained, since something could then be constitutional in one jurisdiction but not in another.

Whole Women’s Health. Also to be argued next month is Whole Women’s Health v. Cole, involving a Texas law requiring abortion doctors to have local admitting privileges, and abortion clinics to operate like outpatient surgical centers (see Supreme Court runs interference on Texas’ attempt to pass abortion restrictions, November 16, 2015). Numerous other states have passed similar laws, and Scalia would have likely provided a fifth vote to uphold such restrictions. Without Scalia’s vote, however, a four-four split would leave in place a Fifth Circuit Court of Appeals ruling that upheld the law. This would mean that other courts of appeals rulings striking down similar laws would also stand.

Yet, Professor Shaman noted what many of the Court’s observers have predicted in regard to the fate of the Texas abortion laws. That is, even if Scalia were still on the Court, the law was likely to be struck down as they are extremely restrictive and contrary to the framework of women’s right laid out in Roe v. Wadeand affirmed in later cases. “Scalia has been campaigning to overturn Roe v. Wade ever since he got on the Court but he was never able to do that,” noted Shaman.

Other current health cases. In Universal Health Services, Inc. v. U.S. ex rel. Escobar, the Court will decide whether a government contractor’s Medicaid reimbursement claims are “legally false” if payment conditions were not clearly specified (see Does fraud go without saying?Supreme Court to examine ‘implied certification’ in FCA

, December 8, 2015). The respondents’ brief on the merits is due on February 25, 2016. No conference date has been set.

In Holtze v. Burwell, the Court will decide whether the Anti-Injunction Act (AIA) bars a pre-enforcement challenge by an employer to the constitutionality of the ACA. The Fifth Circuit held that it did (see Congress called it a tax, so Anti-Injunction Act bars court challenge, April 29, 2015). According to the Fifth Circuit, the assessable payment imposed on employers who do not offer affordable minimum essential coverage is a tax, and the AIA prohibited lawsuits to prevent the collection of any tax. Therefore, the party objecting to the tax must first pay it and then sue for a refund. The case is scheduled for conference by the Court on February 19, 2016.

Justice Scalia. Antonin “Nino” Scalia served in both the Nixon and Ford Administrations, eventually as an Assistant Attorney General. In 1982, President Ronald Reagan appointed Scalia to the U.S. Court of Appeals for the District of Columbia Circuit. In 1986, Reagan appointed him to the Supreme Court.

Judicial demeanor and philosophy. Scalia asked more questions and provoked more laughter than other Justices during oral arguments. He was considered a textualist, believing that the plain meaning of a statute should govern its application. Scalia often described himself as an originalist, meaning that the Constitution should be interpreted as it would have been understood when it was adopted. As a result, Scalia opposed the idea that the constitution is a living document. Professor Shaman called Scalia “a very forceful Justice,” and predicted that his absence on the Court would potentially “change the dynamic on the Court.”

When the Supreme Court upheld the ACA’s federal exchange tax subsidies in a six-to-three vote in King v. Burwell, Scalia colorfully described the majority’s analysis as “interpretive jiggery-pokery” and “pure applesauce” and suggested that we start calling the ACA “SCOTUScare” (see SCOTUS rules in favor of ACA subsidies for federal Exchange enrollees, June 25, 2015).

Scalia’s dissent, relying on his philosophy of strict statutory construction, responded: “Today’s interpretation is not merely unnatural; it is unheard of. Who would ever have dreamt that ‘Exchange established by the State’ means ‘Exchange established by the State or the Federal Government’? Little short of an express statutory definition could justify adopting this singular reading.”

Scalia concluded: “The somersaults of statutory interpretation they have performed (‘penalty’ means tax, ‘further [Medicaid] payments to the State’ means only incremental Medicaid payments to the State, ‘established by the State’ means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence.”

In the other major ACA challenge, National Federation of Independent Business v. Sebelius (June 28, 2012), the Supreme Court, in an opinion written by Chief Justice John Roberts, upheld by a vote of five-to-four the individual mandate to buy health insurance as a constitutional exercise of Congress’s taxing power. Justice Scalia joined Justices Kennedy, Thomas, and Alito in an unsigned dissent arguing that the individual mandate was unconstitutional because it represented an attempt by Congress to regulate beyond its power under the Commerce Clause. The joint dissent further said that reclassifying the individual mandate as a tax rather than a penalty in order to sustain its constitutionality was not to interpret the statute but to rewrite it, which they deemed a troubling exercise of judicial power.

President Obama’s statement. President Obama hailed Scalia as “a larger-than-life presence on the bench—a brilliant legal mind with an energetic style, incisive wit, and colorful opinions.” Obama said, “Justice Scalia dedicated his life to the cornerstone of our democracy: The rule of law,” and honored “his extraordinary service to our nation.”

Justice Ginsburg’s statement. All of the Justices, current and retired, issued warm statements. Justice Ruth Bader Ginsburg, who described herself and Scalia as “best buddies,” said, “Toward the end of the opera Scalia/Ginsburg, tenor Scalia and soprano Ginsburg sing a duet: ‘We are different, we are one,’ different in our interpretation of written texts, one in our reverence for the Constitution and the institution we serve.” She added, “We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation . . . and gave me just what I needed to strengthen the majority opinion.” She called Scalia “eminently quotable, his pungent opinions so clearly stated that his words never slipped from the reader’s grasp.”

Replacement battle. In his statement, President Obama said, “I plan to fulfill my constitutional responsibilities to nominate a successor in due time.” He called on the Senate to “fulfill its responsibility to give that person a fair hearing and a timely vote. Within hours, the Washington Post reported Senate Majority Leader Mitch McConnell (R-Ky) saying that “this vacancy should not be filled until we have a new president.” The Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) concurred, according to the Post: “it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court justice.”

When the nomination arrives, there are four possible scenarios that would prevent a confirmation:

  1. the Senate Judiciary Committee (where the Republicans hold a 11-to-nine advantage) may decline to consider the nomination;
  2. the Committee may consider the nomination but vote it down;
  3. if the Committee considers the nomination and votes it out to the full Senate, the full Senate may not reach a vote due to filibuster; and
  4. if the full Senate takes a vote, the Senate may vote down the nomination.

If the nomination is voted out of committee, the Democrats would need 14 Republicans to break ranks just to gain the 60 votes necessary to stop a filibuster. And even if a filibuster was broken, a vote along party lines would defeat the nominee.

For a list of pending Health, Life Sciences, and Health Reform cases and petitions before the Supreme Court, see Health Law Daily’s Supreme Court Docket.

Attorneys: Jeffrey Shaman, DePaul University School of Law.

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