ACA Challengers Ask Supreme Court to Reverse Judge Silberman

Plaintiffs who lost their healthcare appeal in the D.C. Circuit petitioned the Supreme Court yesterday to hear their case along with the related cases already on its docket. The petitioners in Seven-Sky v. Holder challenged the Affordable Care Act’s individual mandate on two grounds–first, that it exceeds Congress’s constitutional authority; and, second, that it burdens their religious exercise in violation of the Religious Freedom Restoration Act. If the Court declines to add their case to the five-and-a-half hour argument in March, the petitioners ask the Court to hold their petition pending disposition of the related cases.

Days after the D.C. Circuit published its decision, the Supreme Court granted cert in three other cases challenging the individual mandate. None of them raise the RFRA argument.

The D.C. Circuit disposed of the RFRA argument in a footnote, “agree[ing] with the district court’s reasoning that appellants failed to allege facts showing that the mandate will substantially burden their religious exercise.” Petitioners argue that the option to pay a penalty instead of buying insurance does not remove the burden on their religious exercise. They cite a 1963 Supreme Court case that held a state could not deny unemployment benefits to a Seventh-Day Adventist fired for refusing to work on Saturdays. In dicta, the Court compared the false choice “between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning her religion in order to accept work, on the other hand” to “a fine imposed against appellant for her Saturday worship.” The Seven-Sky petitioners say the individual mandate presents them with a similar false choice, assessing a fine if they choose to follow the precepts of their religion.

The first issue the Supreme Court will address in March–whether all pre-enforcement challenges to the individual mandate are barred by the Anti-Injunction Act–was the subject of Judge Kavanaugh’s dissent in Seven-Sky. The Court denied cert in the Sixth Circuit’s Liberty v. Geither case–the only ACA case to be decided on that ground.

The cert petition, filed by the American Center for Law and Justice, presents the following questions:

1. Whether the D.C. Circuit, in conflict with the Eleventh Circuit, erred in concluding that the Commerce and Necessary and Proper Clauses grant Congress virtually unlimited power to compel American citizens to purchase products from a private company, such as a health insurance policy, for the remainder of their lives or be penalized annually.

2. Whether the D.C. Circuit, in conflict with Sherbert v. Verner, 374 U.S. 398 (1963), erred in concluding that Petitioners Seven-Sky and Lee have not stated a plausible claim that their religious exercise is substantially burdened when they allege that the individual mandate compels them to either violate their religious beliefs by participating in a health insurance system or pay annual penalties for adhering to their religious beliefs.

Seven-Sky v. Holder, No. 11-5047 (Nov. 8, 2011) (Silberman, S.J., with concurrence by Edwards, S.J., and dissent by Kavanaugh, J.)

(Hat Tip: The Sacramento Bee)

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