WASHINGTON – It was a risky strategy when Indian health advocates decided to get the Indian Health Care Improvement Act attached to the greater national healthcare reform law. For, the fate of the greater law would always be tied to that of the Indian health law—for better or for worse. Now their combined fates lie in balance with the U.S. Supreme Court.
On November 14, the Supreme Court announced that it would review the legality of the greater law, leaving Indians forced to fight to protect their provisions—even though none of the specific orders issued by the high court to date have mentioned the IHCIA by name.
The arguments are set to be heard in March. No one knows how the conservative-leaning court will rule, but it is known that conservative judges in lower courts have already ruled against the legality of portions of the law. And many conservative legal critics have argued that the whole law should be repealed—paying no regard to the uniqueness of the IHCIA.
As part of the Patient Protection and Affordable Care Act, signed into law by President Barack Obama in March 2010, the Indian health law was permanently reauthorized—a major victory for Indian health advocates because the action firmed up commitment to Indian health programs and funding on the national level.
Even though the legislative strategy of getting the IHCIA attached to the larger bill has worked to date – and will continue to work if the Supreme Court does not strike down the law – some in Indian country have argued that the merits of the IHCIA should have been enough to get it passed on its own, without having to worry about subsequent legal challenges, of the sort that are now playing out.
At the same time, many Indian advocates believe that even though the greater health reform law has found itself 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.
The Board of Directors of the National Indian Health Board advocacy organization, based in the nation’s capital, has long known that the Supreme Court challenge was looming. In October, it voted that the organization would continue to lead nationwide legal efforts to save the IHCIA. In that effort, the NIHB has retained the Hobbs, Straus, Dean, and Walker law firm to draft an amicus brief that will be filed in the Supreme Court on behalf of the organization. The brief, according to the law firm, will make arguments similar to those made in a case earlier this year, which saw an appellate court rule that the IHCIA could stand even if other parts of the overall law were found to be unconstitutional.
“We will coordinate with the United States and other lawyers interested in these issues as this effort progresses,” said Geoffrey D. Strommer, a partner with the firm who is leading the effort. “We will also work closely with NIHB and interested tribes and tribal organizations around the country that signed on to the 11th Circuit brief as well as others that would like to join this effort over the upcoming months.”
Strommer said that over the past few weeks, he has heard from a number of tribes and tribal organizations that are interested in signing on to the Supreme Court amicus brief as well as contribute financially to this new effort. Strommer said interested parties could contact him at GStrommer@hobbsstraus.com.
Indian country has already successfully defended the IHCIA. In August, the United States Court of Appeals for the Eleventh Circuit handed down a decision that found that some parts of the overall Obama administration healthcare plan are unconstitutional—but not the IHCIA.
Indian country was forced to take the defensive after a January 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. They further argued that the Indian-specific provisions are “legally separable” from the greater act, and are “related solely to the federal responsibility to provide health care to Indian tribes and their members.”
The appeals court ended up agreeing with the tribal analysis, with the majority in the Eleventh Circuit writing, “Excising the individual mandate from the Act does not prevent the remaining provisions from being ‘fully operative as a law.’”
“The 11th Circuit’s decision on severability was terrific for Indian country,” Strommer said after the new Supreme Court challenge presented itself. “The fact that no Circuit Court that has looked at these questions has adopted Judge Vinson’s flawed severability analysis is comforting and offers some hope that the Supreme Court will agree with our argument if it rules that any portion of the ACA is unconstitutional.”