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Supreme‌ ‌Court‌ ‌Set‌ ‌to‌ ‌Tackle‌ ‌DACA,‌ ‌LGBT‌ ‌Discrimination,‌ ‌Among‌ ‌Other‌ ‌Issues‌ ‌This‌ Term‌
AFFORDABLE CARE ACT

October 1, 2019 by Dan McCue

This year’s term begins Monday, Oct. 7, and will extend into late June, encompassing the presidential primaries and ending just before the Republicans and Democrats host their presidential nominating conventions.

As always, one can expect the Justices’ statements from the bench during hearings, the court’s rulings, and the makeup of the majorities in those rulings, to invite intense scrutiny.

Among the high-profile issues they’ll tackle early in the term are the fate of the Deferred Action for Childhood Arrivals (DACA) program and whether Title VII employment discrimination protections extend to members of the LGBT community.


You can read previews of the other cases here:


AFFORDABLE CARE ACT

The Justices will decide whether Congress needs to cough up $12 billion promised to insurers before the Affordable Care Act was signed by President Barack Obama in March 2010.

“Everything about the Affordable Care Act was outsized and big,” said Paul Clement, providing the context for the three lawsuits the justices have consolidated for oral argument.

The cases are Maine Community Health Options v. United States; Moda Health Plan v. United States; and Land of Lincoln Mutual Health v. United States.

“It was a big piece of legislation. It had huge consequences for the healthcare industry,” he said.

To encourage insurers to provide coverage to people with pre-existing conditions, a provision was included in the ACA that said if insurers lost money on these policies, the federal government would reimburse them for some of the loss.

A parallel provision said that if an insurance company priced their policies too high and made more money than expected, they would return some money to the federal government.

“It was a way of cushioning the risk,” Clement said of the provisions.

However, by the time losses were realized and the reimbursements came due, Congress had changed hands, and the new Republican majority restricted the funds available to the Department of Health and Human Services to pay the insurers. The insurers promptly sued.

Don Verrilli, another of the former solicitors general on the panel, said the cases are interesting because they deal with the issue of how promises made by one Congress are handled by another.

“Anytime a big law like this gets enacted, you learn things as you start implementing it,” Verrilli said. “You start to say, ‘We need to tinker with this.’ “We need to fix that.’ But once you had a change in the party in control of the House, that just wasn’t going to happen … and a whole host of issues ended up in court.”

“There are some questions of law that you’d think would be settled 225 years into our constitutional experiment,” Clement said. “You’d think we’d already know the answer to what happens when Congress says,’Yes, we’ll make some payments, but they’re not due for five years.’ And then Congress, five years later, says, “Well, that’s interesting, but we’re not going to appropriate the funds’. You just think there was a crystal clear answer to that question that was provided … in something Andrew Jackson did or something. Instead, it remains a debatable question.”


You can read previews of the other cases here:

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