Lawyer Reflects on Supreme Court and Indian Health Law


WASHINGTON – Geoffrey Strommer, a partner with Hobbs, Straus, Dean & Walker, has been the lead Native affairs lawyer in the nation following how the U.S. Supreme Court may rule on the constitutionality of the Affordable Care Act (ACA) — and how the Indian Health Care Improvement Act (IHCIA) may in turn be affected.

In January, Strommer and his team filed a brief with the Supreme Court on behalf of hundreds of tribes explaining that the IHCIA amendments enacted in the ACA had a separate genesis from most other parts of the law.

“The IHCIA amendments were developed over a period of 10 years in a separate legislative process from the ACA,” explains the brief. “In order to escape a legislative log-jam, the Indian-specific provisions were put into the Senate’s health 5 care reform bill that became the ACA because it was a moving legislative vehicle. They were not part of or related to the minimum coverage component or other integral pieces of the general health care reform fabric.”

The brief goes on to say that even if the court decides the minimum coverage or other provisions of the law are unconstitutional, the Indian provisions should be able to be severed and remain law.

Strommer watched the late-March high court proceedings in person, and offered the following thought to Indian Country Today Media Network after oral arguments concluded:

“It is hard for me to guess how the court will address the severability question based on yesterday’s argument,” Strommer said. “The justices are clearly struggling with where to draw the line and what provisions of the ACA should survive, if any, if they decide that the individual mandate is unconstitutional.” The individual mandate is the portion of the law that requires individuals to purchase health insurance, or face a tax penalty.

“Options discussed range from striking all provisions in the ACA and giving Congress a chance to come up with brand new legislation, striking only the individual mandate only, or striking the individual mandate and other provisions that are directly connected to the mandate.”

Strommer added that he was pleased to hear several of the justices refer to the Indian provisions in the ACA in their comments: “Justice Ginsberg was the first to do so when she discussed the Indian provisions in connection with provisions in the ACA that are not connected at all to the individual mandate and other provisions related to the mandate. Justice Breyer and Chief Justice Roberts both made similar references to the Indian provisions.

Strommer said that references to the Indian provisions is “very helpful” because if the court ultimately decides to strike down only the individual mandate or only the individual mandate and other provisions in the bill that are directly connected to the mandate (both options that are most consistent with previous Supreme Court cases on severability), chances are good that the Indian provisions will survive.

“Educating the court about how different the Indian provisions are from the Individual mandate was the primary objective behind the brief we filed on behalf of [the National Indian Health Board] and 449 tribes, so we are pleased that our brief appears to have had the impact that we intended,” Strommer said.

Read more on the law’s Indian connection here: Indian Health Law in Danger at Supreme Court