W&L Black Lung Clinic Files Amicus Brief in Supreme Court Health Care Case

Lexington, VA Friday, February 17, 2012

Like any large piece of government legislation, the Affordable Care Act (ACA) passed with numerous provisions and addendums, some of which have little if anything to do with health insurance. But the fate of these laws is now equally at stake next month when the U.S. Supreme Court hears challenges to the ACA and the constitutionality of the Act's individual mandate.

Two provisions of the ACA that do not concern health insurance affect the ability of coal miners and surviving spouses to receive payments through the Black Lung Benefits Act (BLBA). Because the fate of these provisions may be affected by the approach the Court takes in considering the ACA, the Black Lung Clinic at Washington and Lee University School of Law has filed an amicus brief with the Court, seeking to protect the two BLBA provisions. If the ACA is struck down in its entirety, 740 coal miners and spouses nationwide, including 19 of the Clinic's own clients, will lose benefits.

"This is not a theoretical argument about what may or may not happen. These amendments are in place and working," says Prof. Tim MacDonnell, director of the Black Lung Clinic. "If the entire act falls, money will stop coming."

The brief, written by third-year law students Parker Kasmer and Chris Miller under the supervision of MacDonnell, centers on two sections of the ACA that were part of the BLBA prior to 1981, when that law was amended. The provisions were reenacted as part of the ACA, and because their operation and funding is not attached to health care reform, they took effect immediately.

One section provides that if a coal miner has a totally disabling lung disease and worked for more than 15 years in an underground coal mine or similar conditions, it is presumed the lung damage was caused by coal dust. It then becomes the burden of the coal company to prove otherwise. The other section applies to surviving spouses and provides that if a miner fights and wins a claim for benefits, those benefits pass on to the surviving spouse when the miner dies rather than requiring the spouse to re-litigate the claim.

The brief takes no position on the constitutionality of the individual mandate itself, the most controversial component of the ACA, which requires that all Americans purchase health care insurance. Lower courts have split on whether the individual mandate is constitutional and what impact that should have on the rest of the Act if the individual mandate is struck down.

The legal question at issue in the Clinic's brief is known as "severability." The brief, beginning from the assumption that the individual mandate may be struck down, argues that the absence of the mandate should have no impact on the rest of the ACA. In other words, the individual mandate is severable from the rest of the Act.

"If you look at precedent and the Court's tradition of judicial restraint and respect for congressional intent, our analysis points to only one conclusion," says Kasmer. "If the choice is between no act and an act severed, then it is clear Congress would have passed the ACA even without the individual mandate."

But the brief also considers the possibility that the Court will hold that the individual mandate is too connected to the rest of the Act, and that the entire ACA must be struck down. In this case, the brief argues that the black lung amendments can still stand.

"The severability argument that can be made for a single invalid provision can also be made for a single valid provision," says Miller. "The black lung amendments don't affect health care reform at all and can stand alone." The fact that these provisions are already funded and working well ahead of the scheduled start date for the individual mandate only strengthens this claim, Miller says.

W&L's Black Lung Clinic represents coal miners diagnosed with pneumoconiosis, also known as black lung disease, in their pursuit of benefits from the Department of Labor. The Clinic has represented hundreds of clients since its creation in 1996.

"We know the people who will be affected if these provisions fall," says Miller. "When you form a theoretical argument, you do it from an academic perspective, but when you do it for someone you have been working for, it's much more personal."

Kasmer sees the process as the embodiment of a W&L legal education.

"On the one hand, you have the academic exercise of crafting a legal argument from a complex area of law," he says. "And then there is the practical experience of writing a brief and submitting it to the Court in arguably one of the most significant cases of our generation. Having that opportunity is what makes W&L unique."

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