• March 22, 2012

Next week, the United States Supreme Court will hear arguments challenging the Patient Protection and Affordable Care Act, and a Minnesota business has submitted an amicus “friend of the court” brief attempting to inform and sway the Court’s decision on the most divisive issue. Employer Solution Staffing Group (ESSG), a temporary employment staffing company based in Edina, has submitted an amicus brief in support of the challenge to the minimum coverage provision.

The ACA is being challenged on four fronts:

  1. Whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision (the individual mandate);
  2. Whether the Anti-Injunction Act, which prohibits taxpayers from filing a lawsuit to challenge a tax until the tax goes into effect, prohibits a challenge to the ACA’s minimum coverage  provision until after the provision goes into effect in 2014;
  3. Whether Congress can require the states to choose between complying with the ACA or lose out on federal funding for Medicare; and
  4. To what extent (if any) can the minimum coverage provision be severed from the remainder of the ACA?

As a temporary staffing agency, ESSG is the employer of record for all the people who use ESSG to find temporary work. To cover those individuals, ESSG has been using specialized health plans called “mini med” plans.

ESSG argues that the ACA will abolish mini med plans when the law comes into full effect and will make it very difficult for temporary employment agencies to provide the minimum coverage required under the law without facing penalties.  However, Rebecca Levine, of Thiel, Campbell, Gunderson, Anderson, and Levine, the attorney for ESSG, said that she did not know what would actually happen once the law is fully implemented. “There’s a fear of the unknown and that choices by employers will be taken away,” said Levine.

Of the 93 amicus briefs submitted to the Court regarding the ACA, only ESSG’s was on behalf of a business, and not an interest group.  Levine said that her client wanted to express its opposition to the law in an area that affects it directly. The brief takes a strong stance against the ACA, arguing that Congress exceeded its power under the Commerce Clause and that the law starts the country down a slippery slope of big government. Levine did agree, however, that Congress should step in when there is a large problem such as increasing health care costs.

The government, as Petitioner in this case, argues that the ACA is well within Congress’s power, particularly considering past precedent of Wickard v. Filburn.  That case held that Congress had the power to regulate local production of wheat, because the regulation would substantially affect commerce and is widely viewed a having shaped the modern view of the Commerce Clause. Despite the Supreme Court’s decisions in United States v. Morrison and United States v. Lopez, which limited Congress’s power under the Commerce Clause, the Court reaffirmed the broad power of Congress to regulate intrastate commerce in Gonzales v. Raich.

The government further argues that the Supreme Court has never made categorical distinctions between active and inactive commerce, (ie. regulating individuals who are engaging in an action vs. those who do not engage in an action) this is a central argument in Respondents’, as well as Levine’s, brief. Levine said that the foundation for the government’s argument about prior Court precedent is shaky.

The Court’s decision is expected sometime in June. It will be interesting to see if the Court considers any of Levine’s arguments as it weighs the significant legal, economic and political ramifications of the ACA.

Leave a Reply

Your email address will not be published.