Affordable Care Act

  • March 30, 2012
    Guest Post

    By Rebecca L. Brown, Newton Professor of Constitutional Law at the USC Gould School of Law


    During Tuesday’s argument, Justice Scalia asked whether the individual mandate, even if “necessary,” was also “proper.” He may well have had good reasons to focus on this language, and the Necessary and Proper Clause, to which it refers.

    In 2005, Justice Scalia wrote separately in a Commerce Clause case to emphasize that conduct can be regulated if it is “an essential part of a larger regulation of economic activity….”  He added, “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.” The question in the case, Gonzales v. Raich, was whether the federal drug laws could reach the cultivation and possession of marijuana for personal use as authorized by state law. Justice Scalia wrote that, when the federal government puts in place a comprehensive regulatory scheme that falls within the power to regulate interstate commerce (such as the interstate drug laws) then it may also impose additional requirements, even over matters that it could not regulate in isolation (such as wholly intrastate, non-commercial activity, like the growing of marijuana)—if those additional requirements are “necessary and proper” to effectuate the larger federal scheme.   

    Many of us read that plausible analysis to suggest an analogous approach to the Affordable Care Act. Congress has unquestioned authority to regulate the interstate and commercial matters of health care and insurance. In turn, as Justice Scalia made clear in Raich, additional rules that are necessary and proper to the functioning of the overall system of regulating those markets can be constitutionally adopted by Congress-- even if those additional rules might be of questionable validity if passed in isolation. 

    There is no dispute that the individual mandate is necessary, even essential, to effectuate the congressional policy of requiring insurers to offer coverage without regard to pre-existing conditions. Without the individual mandate, people would be free to wait to buy insurance until they needed expensive medical care, which would undercut the role of insurance as a pooling of risk. Assuming, then, that Justice Scalia would maintain consistency with his prior views, many thought that he could be counted on as a vote to uphold the individual mandate.

    But, apparently realizing the import of his prior opinion, Justice Scalia on Tuesday laid the groundwork for backing away from it. While conceding that the individual mandate is “necessary” to the federal scheme, he questioned whether it is also “proper.” Why might it not be proper? In an exercise of utterly circular reasoning, Justice Scalia suggested that it might not be “proper” because it goes beyond the limits of Congress’s limited powers.   

  • March 29, 2012
    BookTalk
    Framed
    America's 51 Constitutions and the Crisis of Governance
    By: 
    Sanford Levinson

    By Sanford Levinson, W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas Law School, and Professor of Government at the University of Texas at Austin.


    I am immensely grateful to be invited to discuss my new book, Framed: America’s 51 Constitutions and the Crisis of Governance, to the readers of ACSblog. I have crafted these comments in a way that highlights what may be an important difference between my take on the Constitution and that of many of my friends in the ACS. Although many, perhaps most of us, share the perception that the contemporary United States is increasingly caught in a “crisis of governance,” attention tends to be addressed at the defects of particular leaders, including, of course, the present majority of the United States Supreme Court. There is much with which I agree in the vision of The Constitution in 2020  set out in the book co-edited by my friends and casebook co-editors Jack Balkin and Reva Siegel.

    However, I believe that we cannot begin to diagnose the causes of our crisis by focusing only on what I call the Constitution of Conversation. It can also be described as the litigated Constitution, and it is litigated precisely because clever lawyers are highly skilled in demonstrating that the indeterminate language of, say, the Commerce or Equal Protection clauses of the Fourteenth Amendment, can be used to support a constitutional vision congruent with the collective goals of the lawyers’ clients or perhaps the lawyers themselves (if they are “cause lawyers”).  In any event, these conversations are known to all of us, and we see them being spelled out particularly passionately with regard to the Affordable Care Act.

    But the most important political realities of the Affordable Care Act are first that it took literally more than a half century to pass after initial proposals by Harry Truman and, secondly, that it is a defective bill in many respects with regard genuinely to getting a handle on the costs of a modern medical system. To explain these realities requires no conversation about the “meaning” of the Constitution. Rather, it requires addressing too-often-ignored “civics class” features of the United States Constitution. How does a bill become a law (or, more practically, why do most legislative proposals have only a snowballs chance in hell of being passed)? The answer lies in the almost insurmountable hurdles set up by the particular American system of bicameralism and the opportunity of presidents to veto any legislation they do not like on policy grounds, with the near impossibility of overrides. I will rejoice when the Supreme Court upholds the Affordable Care Act, as I still think is likely. But it should also be recognized that what the Court will be doing, at best, is saying that a mediocre, albeit necessary, piece of legislation is constitutional if it can run the minefield against progressive legislation established in 1787 and left remarkably unchanged since then. That is the importance of looking at the basic “framing” of the Constitution and the assumptions underlying it. It was designed by people who were basically mistrustful of popular democracy and, more particularly, redistributive legislation. They succeeded quite well in creating a political system that stifles both.

  • 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.