Affordable Care Act

  • June 18, 2012

    by Jeremy Leaming

    We likely shouldn’t be surprised by Justice Antonin Scalia’s “flip-flop,” as TPM puts it, on precedent supporting modern understanding of the Constitution’s commerce clause.

    TPM’s Sahil Kapur reports that in his forthcoming book, Scalia says the Supreme Court’s 1942 opinion in Wickard v. Filburn wrongly construed the scope of the commerce clause. As Kapur and many others have noted, including the Obama administration, Scalia cited Wickard in a 2005 opinion concluding that a law barring personal cultivation of marijuana for medical use was not beyond the scope of the commerce clause.

    In that case, Gonzales v. Raich, Scalia lodged a concurring opinion, citing precedent in holding, “where Congress has the authority to enact a regulation of interstate commerce, ‘it possesses every power needed to make that regulation effective.’”

    In an e-mail to TPM, constitutional law expert Adam Winkler wrote, “This is typical Scalia.”

    Winkler, a law professor at UCLA, continued:

    He respects precedents when they fit his conservative ideology and disregards them when they don’t. He claims that history should guide judges. But nothing about the history of the commerce clause has changed. What’s changed is the political implications of the commerce clause. When it’s being invoked for law and order conservatives, he favors Wickard. When invoked by liberals to support healthcare reform, he thinks Wickard is bad law.

    Once again, we see that Scalia’s orginalism is a charade.

    There is also the spectacle of oral argument, where Scalia not only revealed a wobbly understanding of the health care insurance system but affinity for the simplistic, but radically libertarian arguments lobbed against the Affordable Care Act’s minimum coverage provision. The minimum coverage provision is integral to the health care reform law, requiring those who can afford to do so to obtain a minimum amount of the health care coverage starting in 2014.

  • 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.

  • May 30, 2012

    by Jeremy Leaming

    The arguments lodged against the health care law’s minimum coverage provision have been described by constitutional law experts as radically libertarian or terribly misguided. But during oral argument before the Supreme Court, the right-wing bloc, led by Justice Antonin Scalia appeared eager to endorse the challengers’ arguments against an integral provision of the Affordable Care Act. We’ll likely know sometime in June whether the high court’s conservative wing was indeed persuaded by the challengers’ arguments.

    In a guest post for Balkinization, Rob Weiner, a partner at Arnold & Porter LLP, provides greater detail to the attacks on the health care law’s minimum coverage provision writing they “reflect an effort to codify nostalgia as legal doctrine.” 

    The “most obvious throwback” is the liberty argument, Weiner says. Opponents of the health care law attack the minimum coverage provision as a serious affront to liberty. The minimum coverage provision will require some Americans starting in 2014 to purchase a minimum amount of health care insurance.

    The affront to liberty, Weiner writes “is the right not to obtain insurance – by any other name, freedom to contract.”

    In the Supreme Court’s 1905 Lochner v New York opinion, the majority held that the freedom to contract was “part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution.” Weiner notes that Lochner thus barred New York from regulating conditions of some workers. And in its 1923 Adkins v. Children’s Hospital opinion, the Court relied on this so-called freedom to contract to protect employers from adhering to the minimum wage law.

  • May 22, 2012

    by Jeremy Leaming

    University of Notre Dame’s religious leader the Rev. John Jenkins claims the string of federal lawsuits challenging the Obama administration’s health care policy on birth control is all about protecting religious freedom. But in reality the lawsuits are on wobbly legal ground, and Jenkins’ assertion about protecting a cherished First Amendment freedom is tired.    

    Like a federal lawsuit lodged earlier this year on behalf of Ave Maria University, a Catholic institution in Florida, the new lawsuits argue that a portion of the health care reform law requiring insurance companies to provide birth control to employees, including ones at religious institutions, is a serious affront to the religious institutions’ free exercise of religion rights.

    The Affordable Care Act, however, does not single out religious entities for unheard of treatment. Instead it is a law of general applicability, meaning it covers secular and religious institutions. There are all kinds of laws of general applicability, which may offend religious beliefs, but do not amount to a violation of the free exercise of religion.

    Nonetheless, the religious groups are apparently counting on judicial activism from some of 12 federal courts where their lawsuits have been lodged. In a press release about his school’s lawsuit, Jenkins stuck to the religious liberty canard, saying it “is about the freedom of religious organizations to live its mission ….”

    Irin Carmon, reporting for Salon on the religious groups’ legal actions, agrees with Angela Bonavoglia’s assertion that “this struggle is part of a larger crackdown by conservative hierarchy against liberal elements within it – chiefly, women, including nuns.”

    Others such as the public interest group Americans United for Separation of Church and State say the Catholic organizations are looking to the courts to help them revive faltering church doctrine.