Affordable Care Act challenge at the 5th Circuit goes on

Fifth U.S. Circuit Court of Appeals arguments in Physician Hospitals of America, et al. v. Sebelius received a lot of attention on April 3 for two reasons: The case involves hospital groups challenging the Affordable Care Act (ACA); and Judge Jerry Smith asked a U.S. Department of Justice attorney for a letter addressing the DOJ’s and U.S. Attorney General Eric Holder’s positions on the authority of federal courts to strike down laws passed by Congress. Holder responded to Smith’s request on April 5.

Now that the U.S. Supreme Court has largely upheld the constitutionality of the ACA, one might assume that some re-briefing is needed in Physician Hospitals of America. But that’s not so, says Scott Oostdyk, a partner in the Richmond, Va., office of McGuireWoods who represents the hospital groups in the case.

“There’s no impact whatsoever,” says Oostdyk when asked if the high court's June 28 ACA decision in National Federation of Independent Business, et al. v. Sebelius affects Physician Hospitals of America. He points out that his clients are challenging §6001 of the ACA, which limits doctors from self-referring Medicare patients to doctor-owned hospitals. The hospital groups allege §6001 violates their constitutional rights to due process and equal protection.

In National Federation of Independent Business, a 5-4 majority, led by Chief Justice John Roberts Jr., “held that the individual mandate to purchase insurance was a valid exercise of Congress' taxing power, but Roberts, in a different 5-4 majority, rejected the argument that the individual mandate was constitutional on commerce clause grounds,” reported The National Law Journal.

“If Roberts had voted the other way and had struck down the Affordable Care Act, then 6001 would have died with it. But since the court ruled to uphold the law, then the 5th Circuit has to decide the constitutionality of 6001 in the way that we challenged it,” Oostdyk says.

Dana Kaervang, a U.S. Department of Justice lawyer who defended the ACA before the 5th Circuit in Physician Hospitals of America, declines comment.

-- John Council

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This is such a convoluted case, with a litany of messy details. I just hope there is a solution found soon, because I think the American public is getting tired of this.