ACA

  • June 21, 2012
    Guest Post

    By Erin Ryan, a Fulbright Scholar in China. She is a professor of law at Lewis & Clark Law School, where she will return this summer.  Ryan is also the author of Federalism and the Tug of War Within.This piece first appeared on RegBlog.


    This month, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution. 

    In the “Obamacare” cases, the Court considers whether the Affordable Care Act (“ACA”) exceeds the boundaries of federal authority under the various provisions of the Constitution that establish the relationship between local and national governance. Its response will determine the fate of Congress’s efforts to grapple with the nation’s health care crisis, and perhaps other legislative responses to wicked regulatory problems like climate governance or education policy. Whichever way the gavel falls, the decisions will likely impact the upcoming presidential and congressional elections, and some argue that they may significantly alter public faith in the Court itself. But from the constitutional perspective, they are important because they will speak directly to the interpretive problems of federalism that have ensnared the architects, practitioners, and scholars of American governance since the nation’s first days. 

  • June 6, 2012
    Guest Post

    By Rob Weiner, formerly Associate Deputy General in the U.S. Department of Justice is a partner at Arnold & Porter LLP. Many of the points in the following post are reflected in an earlier post for Balkinization calledPolitics by Other Means,” though with a somewhat different focus


    Ambrose Bierce defined “accuse” as, “To affirm another's guilt or unworth; most commonly as a justification of ourselves for having wronged him.” Thus it is that the opponents of the Affordable Care Act, with no hint of irony, accuse those supporting the Act of interjecting politics into the cases before the U.S. Supreme Court for the purpose of intimidating the Justices. But it was those same opponents -- Republican politicians -- who initiated the litigation after Democrats won a partisan battle in the legislative arena and who have overtly framed the lawsuits as part of a grand political strategy.

    The focus of the legislative battle was the Affordable Care Act, adopted on March 23, 2010, with no Republican votes.  As Republican legislators were vowing to repeal the newly enacted bill, the Republican Attorney General of Florida, along with 11 other Republican State Attorneys General and one Democrat, filed suit seven minutes after President Obama signed it into law. Four of the Republican AGs proceeded over the objections of their Democratic governors. A twelfth Republican AG, from Virginia, sued separately.

    Bypassing the federal courthouse only blocks from his office in Tallahassee, the Florida AG brought the suit more than 200 miles away in Pensacola. That jurisdiction had no connection to the case, but it was an enticing forum for the plaintiffs. All three of its federal district court judges are conservatives appointed by Republican presidents. Although the federal rules did not prohibit this forum shopping, it highlighted the partisan coloration of the case.

    A few months later, seven more states joined the suit. Three were represented by their Republican AGs. The other four states, however, had Democratic AGs who believed the litigation to be meritless. The Republican governors of those states therefore filed instead. In January 2011, seven months after the court-ordered deadline for adding new parties, four more Republican AGs and one Republican governor sought to join the litigation. Why the belated “me-too”?  One reason: the November 2010 elections, which changed the leadership of these five States from Democratic to Republican.

  • June 6, 2012

    by Jeremy Leaming

    The libertarian argument wielded against the Obama administration’s health care reform law was propelled quickly and effectively by a right-wing “infrastructure” that has its sights set on longstanding, but weakened social safety net laws.

    Media Matters’ David Lyle says those concerned about the nation’s social safety net and the Constitution’s progressive values, “should remember how aggressively and efficiently the right was able to deploy its view of the Constitution as a weapon, and meet future attempts to do so head on.”

    Lyle cites a recent Salon piece by Northwestern University law and political science professor Andrew Koppelman, which provides a detailed examination of the evolution of the wildly libertarian argument used against the Affordable Care Act’s minimum coverage provision. That provision of the law requires Americans who can afford it, to purchase a minimum amount of health care insurance starting in 2014.

    Lyle writes:

    Koppelman's research shows that within a few months in mid-2009 the constitutional argument against health care reform went from nonexistent to a subject of mainstream discussion. Koppelman was unable to find any published claim that the individual mandate would be unconstitutional prior to a July 2009 Federalist Society issue brief written by two former Bush administration officials. In August 2009, conservative lawyers David Rivkin and Lee Casey, who regularly write on issues the right-wing legal infrastructure wishes to move into the mainstream, published a Washington Post op-ed attacking the mandate on constitutional grounds. On September 18, law professor Randy Barnett, who would play a leading role in the subsequent litigation against the act, first weighed in on the issue with a post on Politico. Koppelman notes that days later CBS News reported that "[i]n the last few days, a new argument has emerged in the debate over Democratic healthcare proposals," and that CBS mentioned that the constitutionality issue had emerged on The O'Reilly Factor and Fox News.

    The Right’s ability, Lyle continues, to define the constitutional debate “is all the more potent because it so effectively complements a highly ideological, bordering on politically partisan, conservative pro-corporate wing of the federal judiciary.”

    He notes, among other instances, a recent concurring opinion by D.C. Circuit Judge Janice Rogers Brown in Hettinga v. United States. Brown, appointed to the federal appeals court bench by George W. Bush, used her opinion to launch a screed against the federal government’s efforts to battle poverty and provide a sturdy social safety net.

  • April 5, 2012

    by Jeremy Leaming

    President Obama’s warning that the Supreme Court should avoid destroying health care reform has not only irked a federal appeals court judge, but has spurred Republican leaders in the Senate to rush to the defense of the lifetime-appointed justices.

    Responding to a reporter’s question about oral arguments in HHS v. Florida, where Justice Antonin Scalia embraced the simplistic broccoli argument, Obama said the high court would be ignoring precedent if it were to invalidate or greatly hobble the Affordable Care Act. The president noted that Supreme Court precedent holds that Congress has broad power to regulate commerce and to tax and spend for the general welfare. “That’s not just my opinion, by the way,” Obama said. “That’s the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices who said this wasn’t even a close call.” (Obama was referring to appeals court Judges Laurence Silberman and Jeffrey Sutton, who ruled that the health care law’s integral measure -- the minimum coverage provision -- was a valid exercise of Congress’ power to regulate interstate commerce.)

    As TPM reported, the president’s defense of the health care law apparently prompted Judge Jerry Smith of the U.S. Court of Appeals for the Fifth Circuit presiding in a challenge to a part of the Affordable Care Act to demand that Attorney General Eric Holder submit a letter to the appeals court stating the administration’s understanding of judicial review.

    Holder responded in a letter to the appeals court judges in Physician Hospitals of America v. Sebelius that the DOJ “has not in this litigation, nor in any other litigation of which I am aware, ever asked this or any other Court to reconsider or limit long-established precedent concerning judicial review of the constitutionality of federal legislation.”

    Holder noted that the question of judicial review was resolved in the 1803 case of Marbury v. Madison.

    The attorney general also reminded the Fifth Circuit judges that judicial review was not an issue in the case before them.

  • March 30, 2012
    Guest Post

    By Steven D. Schwinn, Associate Professor of Law, The John Marshall Law School. This post is part of an ACSblog online symposium on oral argument in HHS v. Florida.

    At one point in our history, about a hundred years ago, the Supreme Court measured congressional authority and its limits based on formal categories.  For example, the Court said that Congress had authority to regulate “commerce,” but not “manufacturing.”  It said that Congress had authority to regulate matters with a “direct” effect on commerce, but not those that had an “indirect” effect.  And it ruled that Congress could regulate matters of “national” concern, but not those of “local” concern.
     
    These formal categories had no support in the text, history, practice, or precedent of the Constitution.  Yet an activist Court created and used them to flex its muscle to sharply curtail congressional authority based only on its own ideological views about government power and state sovereignty.  This cramped, formalistic, and ideologically-driven jurisprudence predictably failed, and we happily put it to rest in 1937. 
     
    But the ACA litigation now threatens to resurrect it.
     
    The states’ case against the minimum coverage provision depends on a formalistic approach that takes us right back to the rejected jurisprudence of the early twentieth century.  For example, the states argued that the minimum coverage provision exceeds congressional authority because it is a “requirement,” not a “regulation.”  They said that provision goes beyond congressional Commerce Clause authority because it regulates “inactivity,” not economic “activity.”  And they argued that it exceeds the commerce authority because it regulates before an individual enters the market, not “at the point of” market entry.  Justice Kagan highlighted this problem in Tuesday’s argument, but the states’ claims seemed to gain at least some traction with as many as five of the Justices, presaging a potential move back to the discredited jurisprudence of the past.