Affordable Care Act

  • March 27, 2012

    by Jeremy Leaming

    The spin is in on today’s health care law oral arguments – Paul Clement, the attorney for the state’s challenging the law’s minimum coverage provision, is awesome, and the provision is in trouble.

    But, as noted yesterday by constitutional law professor Garrett Epps you’re on wobbly ground when predicting Supreme Court opinions based on oral argument theatrics. Sure, Clement is an outstanding high court litigator -- we’ll take it from SCOTUSblog founder Tom Goldstein who lavished praise on Clement at an oral argument preview last month, calling him one of the greatest attorneys of his generation.

    What we can tell from today’s oral argument is that the Solicitor General Donald Verrilli, Jr., largely focused on Congress’s constitutional authority to regulate interstate commerce. The government has also argued that Congress’s constitutional power to tax and spend also supports the minimum coverage provision. Most of the justices, however, we're glued to the commerce clause question.

    SCOTUSblog’s Lyle Denniston, a veteran Supreme Court correspondent, wrote of today’s oral argument that Justice Anthony Kennedy, “after first displaying a very deep skepticism,” provided toward the end of oral argument “the impression that he might yet be the mandate’s savior."

    Additionally, the high court’s four moderate to left-of-center justices appear inclined to vote in favor of the ACA provision, which requires many to start carrying a minimum amount of health care insurance in 2014.

  • March 26, 2012
    Guest Post

    By Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law; Professorial Lecturer in Law. Morrsion filed a brief on behalf of former IRS Commissioners Mortimer Caplin & Sheldon Cohen urging the Supreme Court to dismiss the challenges to the individual mandate in the Affordable Care Act on the ground that the Anti-Injunction Act deprived the courts of jurisdiction to hear the case. This post is part of an ACSblog online symposium around oral arguments in the Affordable Care Act case.


    There was one thing that was clear on opening day of the battle over the Affordable Care Act:  all of the Justices seemed to want to reach the merits of the constitutionality of the individual mandate.  Their problem was how to get there and how to write an opinion justifying that result.

    Before getting to the argument, there was one surprise: there was no line for seats in the lawyers section as late as 9:15.  Apparently, everyone thought that everyone else would be there, and so almost no one showed up.  But that is almost certainly not going to be the case when the merits come up at 10:00 a.m. on Tuesday.

    Listening to the whole 90 minutes, not a single Justice expressed any concern that prudence would caution against deciding a case in which no taxpayer would owe a penny until 2015, perhaps because they saw the enormity of the issues and how important the Government says it is to decide these issues now.  It surely can’t be because the merits issues are easy or not politically-charged.  Rather, the Court seems to assume that it will have to decide the issues some time, and it might as well do it now, with all the arguments made in more than 100 briefs filed on all sides.

  • March 26, 2012

    The Following is an excerpt from Harvard Law Professor Charles Fried’s testimony during a Senate Judiciary Committee hearing on the constitutionality of the Affordable Care Act.* Prof. Fried was former solicitor general under President Ronald Reagan. This post is part of an ACSblog online symposium around oral arguments on the Affordable Care Act.


    I come here today not as a partisan supporter of the Obama Administration’s health care legislation. I am not an expert in health care economics or policy, and I am sure there are many arguments for and against the wisdom and feasibility of this legislation. I do not enter into that debate. I am an expert on constitutional law, which I have been teaching and practicing for many years and on which I have written books and articles, most to the point my 2004 book, SAYING WHAT THE LAW IS: THE CONSTITUTION IN THE SUPREME COURT. I also am not one who believes that Article 1, Section 8 of the Constitution is in effect a grant of power to Congress to regulate anything it wishes in any way it pleases. There are limits to what may plausibly be called commerce. I agree entirely with the decision in United States v. Morrison that section 13981 of the Violence Against Women Act cannot be brought within Congress’s power to regulate commerce. Indeed I sat at counsel table with Michael Rosman when he successfully argued that case. Though gender-motivated violence is despicable, cowardly, and in every state in the union criminal, a man beating up his wife or girlfriend is not commerce. Neither is carrying a gun in or near a school, as the Court correctly held in United States v. Lopez. The arguments to the contrary required torturing not only constitutional law but the English language. But the business of insurance is commerce. That’s what the Supreme Court decided in 1944 in United States v. South-Eastern Underwriters Ass’n and the law has not departed from that conclusion for a moment since then. One need only think of the massive regulation of insurance that is represented by ERISA to see how deep and unquestioned is that conclusion.

    If insurance is commerce, then of course the business of health insurance is commerce. It insures an activity that represents nearly 18% of the United States economy. (In this connection recall Perez v. United States, which held that a very local loan sharking operation was within Congress’s power to regulate commerce.) And if health insurance is commerce, then the health care mandate is a regulation of commerce, explicitly authorized by Article I, Section 8 of the Constitution.

  • March 26, 2012

    by Jeremy Leaming

    Regardless of the loads of attention that the Supreme Court oral arguments will continue to draw the remainder of the week, the tone of the justices’ questions and their reaction to answers are unlikely to reveal much about how the challenges to the law will be resolved.

    Talking with ACSblog, constitutional law professor, Garrett Epps said there is no way to predict the outcome because “in a case of this magnitude, the Court reacts to the emotional and political overtones of the issue. And certainly the state challengers and the private challengers have done their best to raise the emotional tone of these arguments.”

    The high court commenced three days of oral argument this morning in the challenges to the Obama administration’s landmark health care reform law, the Patient Protection and Affordable Care Act, or Affordable Care Act (ACA), or Obamacare. Today’s oral argument centered on whether an 1867 law, the Anti-Injunction Act, permits the law to be challenged at this time – a standing issue. Before chatting with ACSblog about the oral arguments, Epps noted that Slate senior editor Dahila Lithwick had recently tweeted, that if the health care law oral arguments “were the Beatles, the Tax Anti Injunction Act would be Ringo.”

    Epps, also legal affairs editor for The American Prospect, stuck to what many experts on the law say is its integral part, the minimum coverage provision. That provision requires many, starting in 2014, to purchase a minimum amount of health care coverage or pay a penalty on their income tax filings. The opponents of the ACA have argued the provision is an “unprecedented” governmental regulation.

    Indeed, as Epps noted, the state and individual challengers of the law have spent lots of time and energy trying to paint the law as a wild overreach by the federal government.

  • March 23, 2012

    by Jeremy Leaming

    As the Obama administration and supporters of its landmark health care reform law take note of the law’s anniversary – enacted two years ago today – Timothy Egan takes a look at the state lawmakers opposing the law who have found some health care regulation they can support.

    Earlier this week this blog noted Idaho’s efforts to join a slew of other states that have enacted laws requiring women to undergo invasive ultrasounds and hear government propaganda before obtaining abortions. During the state senate’s consideration of the bill Sen. Chuck Winder in responding to the fact that the legislation did not contain exceptions for victims of rape or incest suggested that women have difficult determining when they’ve been raped.

    “I would hope that when a woman goes in to a physician with a rape issue,” Winder said, “that physician will indeed ask her about perhaps her marriage, was the pregnancy caused by normal relations in a marriage or was it truly cause by rape.”

    In a piece called “The Church Lady State,” for The New York Times Egan takes right-wing policy makers to task for their efforts to micromanage sex lives of Americans. He notes the Tea Party grumblings over Obama’s Affordable Care Act and other regulations, such as those promoting energy conservation, and says none compare to what “your freedom-hating Republican Party has been doing across the land to restrict individual liberty.”

    Egan continues:

    They want the state to follow you into the bedroom, the bathroom and beyond. They think you’re too stupid to know what to do with your own body, too ignorant to understand what your doctors tell you and too lazy to be trusted in a job without being subject to random drug testing. Your body is the government’s business.

    The “church lady state,” or Idaho, however, is on the verge of enacting an even more stringent ultrasound law than those passed in Virginia or Texas, he notes. It “would subject many women to invasive, trans-vaginal inspections.”