WASHINGTON – If the U.S. Supreme Court decides to throw out the Obama administration’s Affordable Care Act (ACA), a major Indian health law would go out with the bathwater.
The widely known law, which would lead to greater health insurance coverage in the United States by 2015, also includes the “permanent” reauthorization Indian Health Care Improvement Act (IHCIA). That portion of the law provides broad support and funding for tribal health programs and for Indian citizens.
“If the justices strike down the entire law, then the IHCIA would also be struck down,” said Chris Stearns, a lawyer with Hobbs, Straus, Dean & Walker, the firm that has filed a Native-focused brief with the court based on this matter. “Indian country would have to start from scratch again. In the broader context, this would not be the first time the Roberts Court has let down Indian country. Tribes are winless before the Roberts Court.”
The court concluded hearing arguments March 28 on the constitutionality of the greater law, including its requirement of an individual mandate that would require Americans to buy health insurance, or face a tax penalty.
After initial arguments, some legal analysts said that the conservative members, which make up a majority of the court, seemed ready to ditch the entire health law—a real danger to the Indian health portion of the law.
“This still looks like a train wreck for the Obama administration, and it may also be a plane wreck, CNN Senior Legal Analyst Jeff Toobin, reported for his network on March 28: “This entire law is now in serious trouble.”
Toobin added, “Anthony Kennedy spent much of this morning talking about if we strike down the individual mandate, how should we handle the rest of the law? Now, it is less clear that they are going to strike down the whole law. There does seem to be some controversy in the court about that.
“Certainly there are some members of the court, Antonin Scalia, Justice [Samuel] Alito, who want to strike down the entire law, but it seemed almost a foregone conclusion today that they were going to strike down the individual mandate, and the only question is does the whole law go out the window with it?”
Indian advocates had argued in 2009 and 2010 that it was important to get the IHCIA tied to the greater health law due to its momentum at the time. However, as the greater law has continued to face legal challenges, the Indian health law has ended up caught in the firestorm.
In January, the law firm of Hobbs, Straus, Dean & Walker filed an amicus brief with the Supreme Court on behalf of 449 tribes, directly or indirectly through tribal organizations, in the case.
“The IHCIA amendments enacted in Section 10221 of the ACA and several other beneficial Indian provisions of the ACA have a separate genesis from the minimum coverage provision, are not connected to or dependent on the application of minimum coverage, and involve legally independent rights and obligations related solely to Indian tribes and their members, Indian people who are not members of tribes, and Indian health care providers,” according to the brief.
“The IHCIA amendments were developed over a period of 10 years in a separate legislative process from the ACA. In order to escape a legislative log-jam, the Indian-specific provisions were put into the Senate’s health 5 care reform bill that became the ACA because it was a moving legislative vehicle. They were not part of or related to the minimum coverage component or other integral pieces of the general health care reform fabric.”
The brief goes on to say that even if the court decided the minimum coverage or other provisions of the law were unconstitutional, the Indian provisions of the ACA should remain intact.
“First, it is highly significant that many of the Indian-specific provisions took effect and have been implemented already by IHS [the Indian Health Service] and the tribes, well ahead of the minimum coverage requirement, which does not take effect until 2014,” says the brief, which also argues that the Indian-specific provisions can and do function independently in a manner consistent with the intent of Congress.
Tribal advocates have been asking Indian citizens to pay close attention to the case. “Indian country has a huge stake in the question that the Court [was to] consider on Wednesday,” according to a briefing paper issued by the National Congress of American Indians. “The question of severability – which asks if one part of the law is found unconstitutional, can the rest of the law still be implemented – is the most critical in regards to implementation of IHCIA.
“The permanent reauthorization of this statute depends on the Court’s decision to uphold the larger piece of legislation despite its final decision about the minimum coverage requirement.
“A decision that the law is unseverable would make the entire law null and void, and would erase significant strides made through the IHCIA by: terminating ongoing feasibility, obstructing enrollment of tribal employees in the Federal Employees Health Benefits Program, and endangering current implementation efforts by IHS, the Department of Veterans Affairs, and Department of Health and Human Services.
“If the Court finds the law unseverable, the loss to tribal communities would be tremendous, and permanent reauthorization of the IHCIA would be undone.”
A decision is expected in June.