Affordable Care Act

  • October 7, 2013

    by Jeremy Leaming

    Former Attorney General Edwin Meese III is frequently credited with helping to pack the federal bench with judges that adhere to strict construction or orignalism, a method of trying to interpret today’s legal controversies through the lens of the Constitution’s framers.

    The Federalist Society notes Meese via his work at the right-wing Heritage Foundation, “counseled White House staffers, Justice Department officials and Senate Judiciary Committee members about the importance of filling judicial vacancies with people committed to interpreting the Constitution according to its original meanings.”

    Meese a member of the Federalist Society’s Board of Directors, has also been instrumental in the shutdown of the federal government over the 2010 landmark health care law, the Affordable Care Act. In an extensive piece for The New York Times, Sheryl Gay Stolberg and Mike Mcintire note that he helped launch a “loose-knit coalition of conservative activists” early in Obama’s second term to craft a new push to “repeal” the Affordable Care Act.

    “It articulated a take-no-prisoners legislative strategy that has long percolated in conservative circles: that Republicans could derail the health care overhaul if conservative lawmakers were willing to push fellow Republicans – including their cautious leaders – into cutting off financing for the entire federal government.”

    The Meese coalition created a defunding “tool kit” with talking points saying it “simply is calling to fund the entire government except for the Affordable Care Act/Obamacare.”

    Meese, as the newspaper notes, also helped launch a group, the Conservative Action Project (CAP) to peddle the defunding plan. Its “welcome friends!” message says President Obama “is trying to remake our government and economy into the image of today’s European social welfare state.”  

    Groups like the Heritage Foundation, where Meese is the Ronald Reagan Chair in Public Policy, and the billionaire Koch brothers have also been involved in pushing the defunding campaign, which has led to the shutdown.

    As noted here, scholars and prominent commentators have blasted the strategy as undermining and endangering democratic processes. The Affordable Care Act became law after extensive debate in Congress, survived a constitutional challenge by lawmakers, and the House’s outlandish number of votes to repeal the law have been for naught. And yes, as The Dish’s Andrew Sullivan noted, the American electorate spoke clearly in 2012 when Obama won a second term in strong fashion.

  • October 2, 2013

    by Jeremy Leaming

    House Speaker John Boehner remains obstinate – the president and Senate must agree to delay or greatly hobble the Affordable Care Act or the government shutdown continues. The New York Times’ Editorial Board correctly dubs it “John Boehner’s Shutdown.”

    Others have rightly taken note that Boehner and a faction of House Republicans are also waging an assault on the Constitution and democracy.

    A portion of Andrew Sullivan’s extensive examination of the matter:

    How does one party that has lost two presidential elections and a Supreme Court case – as well as two Senate elections – think it has the right to shut down the entire government and destroy the full faith and credit of the United States Treasury to get its way on universal healthcare now? I see no quid pro quo even. Just pure blackmail, resting on understandable and predictable public concern whenever a major reform is enacted. But what has to be resisted is any idea that this is government or politics as usual. It is an attack on the governance and the constitutional order of the United States.

    Geoffrey R. Stone, a distinguished law professor at the University of Chicago, has also weighed in, blasting the House Republicans' outlandish attack on “democratic governance.”

    In piece for The Huffington Post, Stone says there is only one side to blame here. As Sullivan and many others have pointed out, Republicans’ efforts to kill Obamacare in the courts, in Congress and in a presidential election were futile. Regardless of what mainstream pundits say, this is not a system broken or perverted by both parties and the president. This is all about Republicans who refuse to play by democratic processes.

    Stone doesn’t mince words, calling the House Republicans’ behavior “nothing less than a perverse and unconscionable betrayal of our democracy.”

    Stone explains, “House Republicans who do not have the votes to repeal Obamacare through the processes of democracy threatened to close the federal government, to throw hundreds of thousands of innocent government employees out of work, and to damage the nation’s economy unless the Senate and the President acceded to their demands. By threatening to wreak havoc with the national interest and inflicting serious harm on hard-working, loyal public employees, they are attempting to coerce rather than to persuade the government into doing what they want. The House Republicans, in short, are holding the nation itself hostage to their demands. This is not democratic governance. This is extortion, plain and simple. In any other circumstances, this would be criminal conduct.”

  • October 2, 2013
    Guest Post

    by Eloise Pasachoff, Associate Professor, Georgetown University Law Center

    Environmental law is safe from legal challenge under the Spending Clause’s new coercion doctrine. That’s the bottom line of Erin Ryan’s new ACS Issue Brief. Professor Ryan, an associate professor at Lewis & Clark Law School, is an expert on environmental and natural resources law and federalism. Her issue brief makes a compelling case that the federal environmental grant programs are not likely vulnerable under the new coercion doctrine that emerged two Terms ago in NFIB v. Sebelius, in which the Supreme Court largely upheld the Affordable Care Act but, significantly, struck down the Act’s expansion of Medicaid as unconstitutionally coercive under the Spending Clause. 

    I agree with Professor Ryan’s analysis and want to make the case that the same is true about federal education law.  In fact, as the second highest source of federal support to the states after Medicaid, federal education law makes a good case study under the new coercion doctrine.  If the federal education laws are likely to succumb to the doctrine’s constraints, then maybe the Court’s Medicaid decision is just the tip of the iceberg, and a lot of federal spending programs are going down.  If, on the other hand, the federal education laws are not likely to be problematic under the new coercion doctrine, then conditional spending in the federal regulatory state is likely to survive relatively unscathed. My work suggests that this second story is more persuasive. 

    As Professor Ryan notes, the NFIB Court’s fractured opinions failed to set forth the terms of the new coercion doctrine with anything like precision, but consensus is emerging that the doctrine has essentially three parts.  (For the plurality, that is; the joint dissent -- in agreement with the plurality that the Medicaid expansion was coercive -- would focus only on the last part.) First, does the condition in question threaten to take away funds for a separate and independent program, or does the condition merely govern the use of the funds? If it just governs the use of funds, then the program is not coercive.

    The second question arises if the condition does threaten funds for an independent program. This question asks whether the states had sufficient notice at the time they accepted funds for the first program that they would also have to comply with the second program. If they did, then the inquiry ends once more with the conclusion that the program is not coercive. 

    The third question arises only if there was no such notice. This question asks whether the amount of funding at stake is so significant that the threat to withdraw it constitutes what the plurality calls “economic dragooning.” Only if this last question is reached and the answer is yes would a program be coercive. 

  • September 3, 2013
    Guest Post

    by Robert N. Weiner, a litigation partner at Arnold & Porter LLP. From 2010-2012, he was Associate Deputy Attorney General at the Department of Justice, where he oversaw the defense of the Affordable Care Act. He has written and lectured extensively about the ongoing challenges to health care reform.

    First there was Obama Derangement Syndrome - hostility to the president so intense as to impair political and legal judgment. Not only birthers were infected. The Senate Minority leader thought it somehow acceptable to announce that Republican legislators’ top priority was making Obama a one-term president. Now, like a flu virus, the disease has mutated into Obamacare Derangement Syndrome -- OCDS. It is at least as intense. And, of particular concern, its carriers are seeking to spread it to the courts.

    Patient zero for this malady may lurk somewhere in the halls of Congress. Perhaps it was Congressman Zack Wamp, who threatened in 2010 to “meet the federal government at the State line to keep them from mandating this bill upon us.” Or perhaps the carrier was House Speaker John Boehner, who called the healthcare bill “Armageddon.” 

    Whatever its origins, the disease is contagious. As Congress ends its August recess, Speaker Boehner is frantically trying to beat back Republican legislators intent on shutting down the federal government, or forcing a default on the Nation’s debt, unless President Obama agrees to repeal the Affordable Care Act. Yeah, right. No doubt the next gambit will be repeal of Social Security or the abolition of paper money.

    Nor did the Supreme Court, in upholding the individual mandate, inoculate the judiciary against OCDS. Lawsuits seeking to gut the Act in one way or another have proliferated in federal courts.  Two of the cases -- one in Oklahoma by the State government, and one in Washington, D.C. by Republican and Tea Party plaintiffs -- are particularly wild. They seek to subvert the central purpose of the Act. 

    As even the plaintiffs in these cases must acknowledge, the principal objective of the Affordable Care Act was to extend health insurance to the 50 million Americans who do not have it. To that end, the Act required that a health insurance exchange be set up in every state as a competitive marketplace offering better deals on insurance to people who don’t have government or employer-sponsored coverage. But Congress recognized that even these better deals are beyond the means of many low-income families. The Act therefore provided these families tax credits to help defray the cost of insurance. 

  • July 26, 2013
    Guest Post
    by Leslie C. Griffin, William S. Boyd Professor of Law, UNLV Boyd School of Law 
    Liberty University v. Lew, the Fourth Circuit’s recent decision about the Affordable Care Act [ACA], should please no one. The opinion demonstrates the dangers of exempting religious organizations and individuals from the law. Take your pick. The court either exempted too many, or too few. Its middle ground unsatisfactorily addresses the First Amendment challenges to the Act.
    Individual plaintiffs and Liberty University opposed the individual and employer mandates of the ACA. The individual mandate requires individuals to obtain minimum essential health care coverage or pay a penalty in their taxes. The employer mandate requires employers to provide affordable minimal essential health care coverage to full-time employees or face a tax penalty.
    All plaintiffs are Christians morally opposed to abortion except to save the life of the mother. The most straightforward of their complaints alleged that their mandated insurance payments would wind up paying for abortions in violation of their constitutional and statutory rights. This is the simplest exemption argument in the case: plaintiffs think they should be exempt from the ACA because it burdens their religion.
    The court quickly dismissed that argument. Under the Free Exercise Clause, it ruled, the ACA is a neutral law of general applicability that applies to everyone without singling out religions for disfavor. Moreover, the court decided, plaintiffs’ religion was not burdened by the mandates. Although plaintiffs alleged that their money would be used for abortion, other provisions of the ACA required that a plan without abortion coverage would always be available as a choice for consumers. Without a substantial burden on religion, neither the Free Exercise Clause nor the Religious Freedom Restoration Act (which prohibits the federal government from substantially burdening religion without a compelling government interest) was violated.