WASHINGTON – The permanent reauthorization of the Indian Health Care Improvement Act is safe for now. That’s according to a decision by the United States Court of Appeals for the Eleventh Circuit handed down on August 12, which found that some parts of the overall Obama administration healthcare plan are unconstitutional—but not the Indian health law.
The permanent reauthorization of the IHCIA was signed into law in 2010 as part of the larger healthcare reform bill pushed by the Obama administration. Given the controversies involved with some parts of that legislation, especially the so-called “individual mandate” to require Americans to buy health insurance, some Indian advocates felt it would have been safer to have IHCIA pass as a standalone bill.
Stepping back from that heated debate, the Indian health law is important because it provides for a variety of federal support for Indian healthcare programs. Before the permanent reauthorization, it would have to regularly go up for debate for Congress—costing countless time, energy, and money for advocates who say it is a basic tenet of the federal trust responsibility toward Indians. Many times Congress failed to act in a timely manner on its reauthorizations due to other concerns its members found more pressing.
The 11th Circuit decision, for now, calms the fears that IHCIA could lose its newfound permanent status, as the court said it was possible to “sever” parts of the law it found unconstitutional, including the individual mandate, from the larger bill—thus protecting the IHCIA and other provisions that the court found constitutional.
“Applying these principles, we conclude that the district court erred in its decision to invalidate the entire Act,” the appellate court wrote in its decision. “Excising the individual mandate from the Act does not prevent the remaining provisions from being ‘fully operative as a law.’”
The news was widely welcomed in Indian country. “The health care of our people should never have been in doubt in the first place – we paid for it over a hundred years ago in our treaties,” said Tex G. Hall, chairman of the Great Plains Tribal Chairmans’ Association and amicus curiae in the case. “If there’s any mandate we should be talking about, it’s the mandate that the United States should honor those treaties and fully fund the Indian health care system which it never has.”
“The Court’s ruling preserves the IHCIA, which is a major victory for Indian country,” added Chris Stearns, a Navajo lawyer with Hobbs, Straus, Dean & Walker, LLP. The firm filed the brief arguing for protection of the IHCIA before the 11th Circuit on behalf of the Seminole Nation of Florida, the National Congress of American Indians, the National Indian Health Board, the Great Plains Tribal Chairmans’ Association, and hundreds of other Indian tribes and groups.
The Indians argued that even if the court chose to strike down the individual mandate, it should nonetheless preserve the IHCIA. The decision to file the brief came in response to a January 31 ruling by Judge C. Roger Vinson, which held that the larger health law is unconstitutional – including the IHCIA – because it exceeds Congress’ power to regulate interstate commerce and has “too many moving parts” to separate the constitutional from the unconstitutional.
“There is no evidence that the district court recognized or considered the terms and the separate genesis of the Indian-specific provisions,” the tribes argued in their brief against Vinson’s analysis.
Many Indian advocates believe that even though the greater health reform law is on shaky ground in the courts, it was worth getting the IHCIA attached to it, since it was strongly supported by the Obama administration and the Democratic leaders in Congress. In effect, it was the best chance the law had for getting passage at the time given the national spotlight on healthcare reform in 2010.
Even though the IHCIA appears safe given the 11th Circuit decision, 25 other state attorneys general beyond Florida have vowed to take legal action against the greater law, which could have negative ramifications for the Indian health law. On top of that, the 11th Circuit decision is widely expected to be reviewed by the Supreme Court, which could have implications for the IHCIA if the high court decides that it cannot be kept intact from the rest of the law.
Still, some believe that this ruling means the IHCIA is safe once and for all. “My view is that this takes the IHCIA off the table when the U.S. Supreme Court finally gets around to hearing the case,” Stearns said. “Right now, you have the Sixth Circuit Court of Appeals upholding the entire law, and one – the Eleventh Circuit – striking down some of the law. Both are fine with the ICHIA. Thus, there is nothing for the U.S. Supreme Court to reverse.”