Guest Article

(From the January 23, 2012 issue of Deloitte's Washington Bulletin, a periodic update of legal and regulatory developments relating to Employee Benefits.)

Numerous "Friend of the Court" Briefs Filed in Support of PPACA's Individual Mandate

January witnessed the filing of the first briefs in the Patient Protection and Affordable Care Act (PPACA) cases now before the Supreme Court. Initial briefs on the four issues — the Anti-Injunction Act, minimum coverage requirement, severability and Medicaid — have all been submitted. Numerous amicus curiae — or "friend of the court" — briefs were also filed in support.

On the central issue of whether the individual mandate / minimum coverage requirements of the PPACA are valid, over two dozen amicus briefs were filed in support of the provisions, including briefs by constitutional law scholars, health law scholars, civil rights organizations (ACLU, NAACP, Leadership Conference on Civil and Human Rights), health provider organizations (American Academy of Pediatrics, American Nurses Association), and small business organizations (Small Business Majority, Main Street Alliance). A brief supporting the individual mandate was also filed by the Attorney Generals of eleven states (California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maryland, New York, New Mexico, Oregon and Vermont) and Washington DC — jurisdictions that are not among those challenging the Act. A brief was also filed in support of the mandate by over 500 state legislators from all of the fifty states — including those jurisdictions that are now challenging the validity of the individual mandate.

Amicus curiae briefs in support of the opposition are expected to be filed with the next round of merit briefs. The response brief in U.S. Department of Health and Human Services v. State of Florida, No. 11-398, the case in which twenty-five states together with the State of Florida are challenging the mandatory coverage requirement, is due February 6, 2012.

The Supreme Court will be reviewing four issues: (1) whether the Anti-Injunction Act allows a lawsuit to challenge the PPACA's individual coverage requirements before they become effective, (2) whether Congress had the power to enact the individual coverage requirements, (3) whether the individual coverage requirements can be severed from the rest of the Act, and (4) whether Congress had the power to expand the Medicaid program by requiring the states to accept the expansion in order to continue receiving Medicaid funding. Briefly, the organization and deadlines are as follows:

The information in this Washington Bulletin is general in nature only and not intended to provide advice or guidance for specific situations. If you have any questions or need additional information about articles appearing in this or previous versions of Washington Bulletin, please contact: Robert Davis 202.879.3094, Elizabeth Drigotas 202.879.4985, Mary Jones 202.378.5067, Stephen LaGarde 202.879-5608, Erinn Madden 202.220.2692, Bart Massey 202.220.2104, Tom Pevarnik 202.879.5314, Sandra Rolitsky 202.220.2025, Deborah Walker 202.879.4955. Copyright 2012, Deloitte.