ACA

  • 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.
     
  • March 29, 2012
    Guest Post

    By Fazal Khan, a law professor at the University of Georgia specializing in health law. Professor Khan has both law and medical degrees. This post is part of an ACSblog online symposium on oral argument in HHS v. Florida.


    On Wednesday afternoon the Supreme Court heard oral arguments on whether the states can challenge the federal government’s expansion of Medicaid. Representing 26 states that oppose ACA in its entirety, former Solicitor General Paul Clement went first claiming that the federal government is “coercing” states to accept this unwanted expansion of Medicaid. As expected, the “liberal” justices pounced on Paul Clement’s central argument. Whereas Clement seemed very cocksure Tuesday arguing against the minimum coverage provision, on Wednesday he was not as deft in parrying the skeptical attacks from the justices, including Antonin Scalia and the chief justice.

    Clement did regain his poise at the end during a strongly delivered (yet still substantively weak) rebuttal. Solicitor General Don Verrilli bounced back admirably after what can be fairly described as a difficult day on Tuesday. He was much more assertive and confident in pushing back against the “conservative” justices and possessed a strong command of the history of Medicaid and previous mandatory expansions of the program which really seem no different than the expansion at issue today.            

  • March 28, 2012

    by Jeremy Leaming

    So it appears just based on oral argument action, if you believe pundits, such as CNN’s Jeffrey Toobin that the high court’s conservative justices are ready to trash precedent and accept the simplistic arguments of the challengers that the Affordable Care Act’s minimum coverage provision is a wild overreach by the federal government.

    As noted in this ACSblog post, UCLA constitutional law professor Adam Winkler says we shouldn’t be surprised that the high court’s right-wing majority may be leaning this way. It has already proved it has no problem shunning precedent or being out-of-touch, for example see Citizens United v. FEC.

    In a piece for The Huffington Post, ACS President Caroline Fredrickson argued against the idea that the minimum coverage provision is “unprecedented,” as its challengers like to call it.

    “What is truly radical,” Fredrickson says, “is the economic theory the state and individual challengers are pushing, which calls for a greatly limiting the ability of Congress to address national concerns. It’s an argument that longs for the days when courts actively shut down congressional attempts to solve national problems.”

    Geoffrey Stone, a constitutional law expert and a member of the ACS board, explains, also in a Huffington Post article, why the law’s minimum coverage provision, which will require Americans who can afford to do so to starting carrying health care insurance in 2014, is seemingly so unappealing to the high court’s conservative wing. Primarily the conservative wing appears to be obsessed with a slippery slope – if folks can be required to purchase health care insurance then what’s next?

    Stone notes that the “slippery slope is a means of reasoning, not a conclusion. Every principle and decision has a slippery slope: The question is whether we can get off the slope before it reaches bad outcomes. In this instance, this is easy. The decisions of millions of individual Americans not to purchase health insurance (even though they can afford it) have a dramatic impact on the cost of health care for everyone else and on interstate commerce. This is clearly an appropriate matter for federal attention under the Commerce Clause.”

  • March 28, 2012
    Guest Post

    By Sergio Eduardo Muñoz, Senior Policy Analyst, Health Policy Project, Office of Research, Advocacy, and Legislation, National Council of La Raza. This post is part of an ACSblog online symposium on oral argument in HHS v. Florida.


    Yesterday’s Day 2 Affordable Care Act (ACA) arguments at the Supreme Court involved the centerpiece of both health care reform and its legal challenges by examining whether the individual responsibility requirement to carry health insurance exceeds Congress’s powers under the Constitution. And unfortunately, it didn’t take long for it to become painfully clear that this question of enormous consequence may very well split down ideological lines. During his confirmation hearings, Chief Justice Roberts used the analogy that a federal judge is like an umpire, objectively calling balls and strikes under commonly accepted rules. If anything good came out of Tuesday’s acrimonious argument, maybe we can finally put that misleading visual to rest. The Justices’ sharp comments on the constitutionality of the responsibility requirement made clear that not only are the Court’s ideological wings calling these pitches differently, it’s not even clear they’re playing the same game.

    Before describing today’s fireworks, however, some cold facts underlying today’s arguments and what the responsibility requirement does and does not do. If the responsibility requirement was in effect today, also referred to as the “individual mandate,” only 7% of the country under-65 would have to newly buy insurance or pay the tax penalty for non-compliance. Of those, over half would receive generous subsidies to assist in the purchase of insurance in newly-regulated markets. The vast majority of Americans would not have to decide how to satisfy the responsibility requirement because they already have insurance or would be exempt from purchase because of the economic strain. Take the Hispanic community, for example. Considering uninsured Latino children in comparison to other groups are disproportionately underenrolled in Medicaid and CHIP, despite the fact that Hispanics are about two times more likely than Whites to qualify for public health insurance, the odds are slim that this community would have to choose between new insurance and the assessment. This truth, unfortunately, has not been successfully communicated.