Affordable Care Act

  • September 14, 2012
    Guest Post

    By Kent Greenfield, Professor and Law Fund Research Scholar, Boston College Law School. Follow Professor Greenfield @kentgreenfield1. This post is part of an ACSblog Constitution Day Symposium.


    Every September, the American Constitution Society celebrates Constitution Day, as well it should. ACS isn’t alone, of course. Schools around the country, from kindergartens to universities, also commemorate the day in various ways.

    And every year at this time I play the constitutional curmudgeon, warning that Constitution Day may be unconstitutional. You can read previous iterations of my arguments in this blog here and in The New York Times here.

    The basic argument is that Constitution Day is unconstitutional because, as a federal mandate on any public or private educational institution receiving federal funds, it amounts to coerced speech under the First Amendment.  If a kindergarten or university were to refuse to alter their curriculum to cover the topic, they would stand to lose all federal funds.  That sounds to me like a violation of the unconstitutional conditions doctrine.  As Justice Jackson famously said for the Court in West Virginia v Barnette: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

    Because I’m a law professor, I can alter the hypothetical to make my point. If Congress passed a law saying “no school receiving federal funds is permitted to offer a course about Islam,” wouldn’t it be clearly unconstitutional?

    Of course the argument is not simple, mostly because the unconstitutional conditions doctrine is a hash. Sometimes the Court allows conditions — see Rumsfeld v FAIR or Rust v Sullivan — and sometimes it doesn’t — see Speiser v Randall or Legal Services Corp. v Velazquez.

    I will say, however, that my argument is stronger this year. Why? Because of Chief Justice Roberts’s opinion in National Federation of Independent Business v Sebelius, the ACA case.

  • July 16, 2012

    by Jeremy Leaming

    Although it can be argued that the state governors threatening to forgo implementing the Affordable Care Act’s expansion of Medicaid have a skewed idea of state sovereignty, likely closer to the truth is that most of the governors are carrying on a tawdry tradition of denying help to the most vulnerable.

    S.C. Gov. Nikki Haley, Fla. Gov. Rick Scott, La. Gov. Bobby Jindal and Texas Gov. Rick Perry have all vowed that their states will not expand their Medicaid programs to millions of uninsured, even though pursuant to the ACA the federal government will cover most of the costs of implementing the expansion. The New York Times reports that the expansion of Medicaid would add “17 million people to the rolls, accounting for half of all uninsured people expected to gain coverage nationwide.”

    All those governors have offered typical, but disingenuous complaints that the federal government is forcing the states to spend money they don’t have. They also predictably paint the federal government as pushing wasteful domestic programs or offering more free things to people.

    It is the same tired, offensive and often racially tinged complaint that conservative politicians have been peddling for decades in their nonstop attack on government.

    Gov. Scott called the ACA’s Medicaid provision “a massive entitlement expansion,” and Gov. Rick Perry (pictured) who presides over a state with the largest number of uninsured said the Affordable Care Act “would make Texas “a mere appendage of the federal government.”

    University of Maryland School of Law professor Sherrilyn Ifill in an opinion piece for CNN said the governors are carrying on a long tradition of not doing a terribly good job of governing.

    “These elected leaders are following a longstanding tradition in American politics of Southern states acting against the best interest of their residents,” she writes.

  • July 13, 2012

    by Joseph Jerome

    After declaring that Texas would not be expanding Medicaid to include millions of uninsured Texans, Gov. Rick Perry insisted that “the real issue here is about freedom.” South Carolina Gov. Nikki Haley argued that the Affordable Care Act reveals a federal government that “simply [doesn’t] believe states should be trusted to govern themselves.” Speaking on the Meet the Press, Louisiana Gov. Bobby Jindal invoked the principles of federalism when he suggested universal health care was akin to having Mardi Gras in Vermont.

    This rhetoric reveals a profoundly state-centric view on what freedom means, and while the Tenth Amendment certainly speaks to the rights of states vis-à-vis the federal government, it also talks about the rights of individual citizens. “If anything, the Tenth Amendment recognizes potentially expansive federal power,” Professor Steven Schwinn wrote on SCOTUSblog, rebutting “states’ rights” arguments against the Affordable Care Act.

    The problem is that “we are all hypocrites” when it comes to power struggles between the state and federal governments, Professor Garrett Epps explains. “The basic view of ‘states' rights’ is that they extend to any policy that the speaker thinks will go his or her way at the state level,” he writes.

    Though Gov. Perry (pictured) has long been a “states’ right stalwart,” he too falls into Epps’s trap. The governor supports federal efforts to restrict marriage equality and ban abortions, and the real issue was not freedom when $17 billion in federal stimulus money was used to balance Texas’ budget. When it comes to the Medicaid expansion, however, millions of Americans in these states must find comfort in being told they will go without health insurance as a matter of principle.

  • July 11, 2012

    by Jeremy Leaming

    The right continues to wage a tiresome campaign against even modest efforts to repair the nation’s tattered social safety net.

    Although only symbolic, since it won’t go anywhere in the Senate, the House of Representatives passed a measure to repeal the landmark health care reform law, the Affordable Care Act (ACA).  

    It was not the first time the House has voted on such a measure. In fact the chamber has voted more than 30 times to repeal the ACA. The right-wing controlled House wants to remind everyone that it cares little about the tens of millions of uninsured Americans.

    House Democratic Whip Steny H. Hoyer (D-Md.) took to the floor during today’s vote to blast the House leadership’s continued obsession with destroying health care reform.

    “If this bill were to pass, insurance companies could once again discriminate against 17 million children with pre-existing conditions. If it were to pass, 30 million Americans would lose their health insurance coverage. It would take away $651 each from 5.3 million seniors in the Medicare ‘donut hole,’ making their prescription drugs more expensive,” Hoyer (pictured) said.

    He also noted that “6.6 million young adults under 26 would be forced off their parents’ plans, left to face a tough job market with the added pressure of being uninsured.”

    All of the Republican’s repeal bills, as Hoyer highlighted, contained no measures to help the uninsured.

  • July 11, 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 author of Federalism and the Tug of War Within. Read her previous guest post “Health Care Reform and Federalism’s Tug of War Within.”


    In the wake of the Supreme Court’s Affordable Care Act (ACA) decision, it’s easy to get lost in debate over the various arguments about how the commerce and tax powers do or don’t vindicate the individual mandate. But the most immediately significant portion of the ruling –

    and one with far more significance for most actual governance – is the part of the decision limiting the federal spending power that authorizes Medicaid. It is the first time the Court has ever struck down congressional decision-making on this ground, and it has important implications for the way that many state-federal regulatory partnerships work.

    The Spending Clause authorizes Congress to spend money for the general welfare. Congress can fund programs advancing constitutionally specified federal responsibilities (like post offices), and it can also fund state programs regulating beyond specifically delegated federal authority (like education).  Sometimes, Congress just funds state programs that it likes. But it can also offer money conditionally – say, to any state willing to adopt a particular rule or program that Congress wants. In these examples, Congress is effectively saying, “here is some money, but for use only with this great program we think you should have” (like health-insuring poor children).