THE TORCH: CONTENTSBy Hannah Coleman, NILC intern
July 17, 2017

On June 26, 2017, the Supreme Court issued an invitation for the United States solicitor general to file a brief expressing the federal government’s view of our case Brewer v. Arizona Dream Act Coalition.

Arizona requested the Court take up the case after an appeals court affirmed the state could not discriminate against DACA beneficiaries in issuing driver’s licenses. The Court in turn requested the view of the solicitor general. Though the request to the Solicitor General’s Office is not unusual, some were left wondering whether that held any implications for the DACA program overall.

Here is some information on this common practice:

Who is the solicitor general and what does he do?

The solicitor general is the Department of Justice’s officer responsible for representing the federal government of the United States before the Supreme Court. Additionally, the Court can ask for the solicitor general’s view through what is called a “Call for the Views of the Solicitor General” or a “CVSG.”  The solicitor general then submits a legal brief to the Court in which he offers his opinions on whether the Court should hear the case. Jeffrey Wall is the current acting solicitor general.

What is the process for CVSGs?

The most common types of cases that receive CVSGs are cases implicating the interests of the federal government, cases with the potential to shape an important area of law, and cases involving complex regulatory or statutory schemes.

Even though CVSGs are described as “invitations,” the Solicitor General’s Office views them as orders, and the solicitor general responds to every invitation it receives from the Supreme Court. During the 2016 term, the solicitor general filed 20 CVSG briefs, and in the 2015 term the solicitor general filed 15 briefs.

Before drafting its brief, the Solicitor General’s Office frequently meets with counsel in the case to better understand the legal issues, litigation history, and record, and consults with interested departments and agencies in the federal government.

Even though the Court is seeking the views of the solicitor general to determine whether the Court should hear the case, the solicitor general often makes additional recommendations as to how the Court should rule on the merits of a case.  However, a data set of CVSGs from 2001-2004 reveals that “[t]he Court’s ultimate decision on the merits is not highly correlated to the Solicitor General’s merits recommendation in his invitation brief.”

How long will it take for the solicitor general to file a brief for Brewer v. Arizona Dream Act Coalition?

The Supreme Court did not impose a filing deadline for the solicitor general’s brief in this case, and this is not surprising given the Court usually does not impose a deadline on the solicitor general. Therefore, we do not know exactly when the solicitor general will file his brief.  A data set from 2001-2004 reveals that the solicitor general takes, on average, over four months to file the brief.

We surveyed all CVSG briefs filed by the solicitor general between May 20, 2016, and May 23, 2017 (27 total) and found that the average filing time is still over four months. However, we note that the timing is unpredictable. For example, the shortest response time was just over two months, while the longest response time was over eight months.

We also found that for invitations, like the one in Brewer v. ADAC, that were received in late spring or early summer, the solicitor general typically files the briefs between August and December.

What are the different recommendations that the solicitor general can make?

The two most common recommendations are for the Court to agree to hear the case (accept certiorari) or to decline to hear the case (deny certiorari).  There are instances where the solicitor general has made other recommendations (for example, that the Court hold the case pending the outcome of a different case, or grant a recommendation to a companion case), but these are less common.

From May 20, 2016, to May 23, 2017, the solicitor general recommended the Court deny certiorari in 17 instances (63 percent); accept certiorari in 9 instances (33.3 percent), and wait for the resolution of a related case in one instance (3.7 percent). These percentages are similar to the data from 2001-2004.

Does the Supreme Court typically follow the solicitor general’s recommendation?

Yes, but only with respect to whether it hears the case. Out of the 27 CVSGs filed between May 20, 2016, and May 23, 2017, the Supreme Court followed the solicitor general’s recommendation in 23 cases (or 85 percent).  This is consistent with the 2001-2004 study, which finds that the Court followed the recommendation of the solicitor general in 79.6 percent of the cases surveyed.  However, as discussed above, if the Supreme Court does take the case, there is not the same kind of strong connection between what the solicitor general recommends on how the Supreme Court should rule and what the Court actually ends up deciding.

What happens next and what, if anything, does it mean for the DACA program overall?

Once the solicitor general submits his brief, the Supreme Court will then decide whether to take the case. If the Court decides not to take the case, then the Ninth Circuit decision, permanently blocking Arizona’s DACA driver’s license ban, will remain the final word on the case. If the Court decides to take the case, the case will then move forward to be briefed, argued, and eventually decided by the Supreme Court.

We do not know what position the solicitor general will take, if any, with regards to the continuing validity of the DACA program, especially since it is not a guarantee that this issue will be addressed by the Court in this case. However, it is ultimately the president who must affirm his support for DACA and the over 800,000 individuals and their communities who stand to lose so much if the program were eliminated.

THE TORCH: CONTENTSBy Gabrielle Lessard, senior policy attorney
July 6, 2017

Congressional efforts to “repeal and replace” the Affordable Care Act (ACA) would dramatically increase the number of uninsured people in the U.S., and that would be bad for everyone.

The Congressional Budget Office (CBO) estimates that implementation of the Senate’s proposed Better Care Reconciliation Act (BCRA) would increase the number of uninsured people to 49 million by 2026. The BCRA’s burdens would fall disproportionately on low-income consumers, children and seniors, with Medicaid spending cut by 26 percent by 2026 and by 35 percent by 2036.

Immigrants would be directly impacted if the BCRA became law because under the current Affordable Care Act lawfully present immigrants (with the exception of DACA recipients) are eligible to obtain health plans and income-based subsidies through the health care exchanges. The BCRA would strip eligibility from all but the subset of lawfully present immigrants deemed “qualified” under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.  Many immigrants with humanitarian statuses or circumstances, applicants for lawful permanent resident status with approved visa petitions, and others would lose eligibility under the bill.

A policy that increases the number of uninsured people is bad for everyone because the lack of access to health insurance produces adverse physical and economic consequences for individuals, families and communities.

Being uninsured has been correlated with poorer quality of health care, lower rates of preventive care, and greater probability of death. Many uninsured people avoid seeking medical care unless they are faced with an emergency, or delay care until their symptoms become intolerable. As a result, the uninsured are less likely to receive a diagnosis in the early stages of a disease and are more likely to suffer complications from aggravated medical conditions. They are at particular risk from diseases that are asymptomatic or produce only minor symptoms, such as high blood pressure and diabetes.

Health insurance also plays a major role in managing financial risk for individuals and families. Families with even one uninsured member face stigma, anxiety and the potential for financial catastrophe. Uninsured individuals who become hospitalized experience a host of financial setbacks over the next four years, including reduced access to credit, a 170 percent increase in unpaid medical bills, and a significantly higher likelihood of filing for bankruptcy.

The economic consequences of poor health extend beyond individuals and families.

People without insurance are often in poor health, which results in multiple dimensions of lost economic productivity: adults whose health status prevents them from working, workers who miss time from their jobs because of health problems, and workers who are working but less productive because of their health conditions or worries about a family member. Health-related productivity losses are estimated to reduce U.S. economic output by $260 billion a year.

Importantly, providing healthcare creates jobs and drives economic activity. A Commonwealth Fund analysis of the House “repeal and replace” bill, which is similar to BCRA, found that implementation of the bill would result in the loss of 924,000 jobs and a $148 billion decrease in business output by 2026.

The presence of a high concentration of uninsured individuals compromises access to health care for entire communities. Health systems prefer to invest in affluent areas that have higher rates of insurance. Physicians generally prefer working in newer, more up-to-date facilities over under-resourced health centers in low-income communities. Hospitals in areas with high rates of uninsured struggle with recruiting on-call specialists, resulting in longer wait times for emergency room visitors – regardless of their health insurance status. Lower rates of insurance within a community result in a decrease in availability of primary, preventive, specialty, and hospital-based care services, and may result in the closure or privatization of local community hospitals.

When many members of a community are uninsured, all members of the community are affected. Both the insured and the uninsured benefit physically and financially when every person in a community has access to affordable health coverage. It is in everyone’s interest to promote access to health care for all. Congressional health care proposals that would add millions to the number of uninsured are shortsighted and self-destructive.