Commerce clause

  • March 21, 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 piece is cross-posted at NCLR Blog.


    Earlier this month, a curious thing happened in Texas. Despite repeated federal warnings, Texas enacted state rules that gutted its Women’s Health Program (WHP), a successful state program for low-income health care. Because this state action defunds almost half of the program’s health clinics solely due to their affiliation with Planned Parenthood, the Obama administration advised Texas that the move violated patient choice under federal law. Texas went ahead anyway, despite the ensuing loss of federal dollars as a consequence for noncompliance, and now over 130,000 low-income Texans will be without vital preventive services.

    What didn’t happen?  Texas didn’t drop its vendetta against essential women’s health providers, choosing instead to come between some of the state’s most vulnerable people and preventive care. What else didn’t happen?  Texas, currently arguing before the Supreme Court that it is a victim of Medicaid coercion under the Affordable Care Act (ACA), was not coerced to maintain its WHP. A program that is—you guessed it—funded by Medicaid.

    Last week’s final reply brief filed by the states in the ACA cases has a quick explanation for the contradiction. According to the states, the Medicaid expansion under the ACA is unique, the coercion is unique, the challenge is unique, and the ultimate Supreme Court decision will accordingly be unique as well. Nothing to see over there in uncoerced Texas, and don’t worry about setting bad precedent either. A convenient assurance about a case that clearly could have sweeping consequences for many more federal laws enacted under spending powers, but one of cold comfort in light of the boldness of the actual challenge and the ineffectiveness of similar attempts at damage control. Furthermore, it’s curious that these state litigants, who were previously so concerned about the lack of a limiting principle on the federal government’s powers to regulate commerce and spend in the general welfare, now introduce an argument challenging the Medicaid expansion that itself has no limiting principle.

  • March 16, 2012

    by Nicole Flatow

    Eighty-five percent of "a select group of academics, journalists and lawyers who regularly follow and/or comment on the Supreme Court" believe the U.S. Supreme Court will uphold the Affordable Care Act, according to a new American Bar Association poll.

    The widespread belief among legal experts that the health care reform law is constitutional is nothing new. As Reuters’ Joan Biskupic writes in a story tracing the history of the health care litigation, legal challenges to the law were initially regarded among many law professors as “implausible” and “frivolous.”

    She explains:

    As the suits proliferated, many professors, including conservatives, declared the challenges meritless. Charles Fried, a U.S. solicitor general under Reagan and now a Harvard law professor, told Greta Van Susteren of Fox News that he was so confident the individual mandate was valid that he would eat his hat - "bought in Australia ... made of kangaroo skin" - if the law was struck down.

    Public buy-in of the concept that the individual coverage provision is unconstitutional increased when the challengers recruited seasoned Supreme Court litigator Paul Clement. Clement shifted the argument away from directly relevant Commerce Clause precedent and toward the slippery-slope message that there are no discernible limits on the government’s commerce power, and that the law is “unprecedented.”

    The “It’s unprecedented!” rhetoric has been a rallying cry throughout history for those pushing back against progress, writes UCLA law professor Adam Winkler in a column for the San Jose Mercury News. But it hardly ever succeeds. He explains:

  • March 15, 2012
    BookTalk
    Health Care Reform
    What It Is, Why It's Necessary, How It Works
    By: 
    Jonathan Gruber


    By Jonathan Gruber, a professor of economics at the Massachusetts Institute of Technology


    The Affordable Care Act (ACA) represents the most fundamental reform of the U.S. health care system of the past 50 years. Such an important social policy change should be widely understood by our citizens so that it can be most effectively implemented. Yet the ACA is sufficiently ambitious and complicated that understanding of the law is quite poor. This is one of the reasons I chose a graphic format for my book, Health Care Reform: What It Is, Why It's Necessary, How It Works.

    You can’t understand the need for, and the accomplishments of, health care reform without appreciating the fundamental failure in health insurance markets today. Unless you are offered insurance by your employer, or by the government, there is effectively no meaningful insurance in America. Individuals subject to the harsh “non-group” market face exclusions from pre-existing illness or can be dropped as soon as they become ill. And the key to solving this problem is the individual mandate, which can end insurance market discrimination by promoting broad insurance participation.

    At the heart of this reform is what I like to think of as a “three legged stool” designed to solve this problem and, as a byproduct, cover most of our nation’s uninsured. The first leg is insurance market reform which will end the ability of insurance companies to discriminate against the sick; no longer will we be one bad gene or one bad traffic accident away from bankruptcy. The second is the individual mandate, which requires insurance coverage so long as that coverage is affordable (costs less than 8% of income). This mandate is critical; without it, insurers will react to insurance market reform by raising prices because they are afraid only the sick will buy insurance. But you can’t mandate insurance coverage unless it is affordable, which it is not for low income Americans.  That’s why we need the third leg of the stool: extensive subsidies that will make health insurance affordable for those living below median income.

  • March 9, 2012

    by Jeremy Leaming

    The Supreme Court has set aside a large chunk of time later this month to hear argument over the constitutionality of the health care law’s integral provision, but the primary argument against the minimum coverage provisions has been loudly and repeatedly bandied about since the law’s enactment.

    The law’s minimum coverage provision requires people who can afford it to obtain a minimum coverage of health insurance or pay a penalty when filing their income tax returns. It’s not the only provision being challenged by the states, but it is the one that has largely driven the right-wing argument that if the federal government can force some people to purchase health care insurance, there’s no limit to what Congress will be able to require individuals to purchase. (Maybe Congress will require everyone to purchase a gun, to protect their lives, from predators. While becoming a target of crime is obviously something that does and can happen anywhere in the world, it is not as certain as humans’ need for medical treatment due to many other causes, many natural.)

    As noted on ACSblog numerous times, the liberty argument is not only wobbly, but hypocritical. A former U.S. Solicitor General Walter Dellinger noted at last year’s ACS Convention that many of the folks complaining about the minimum coverage provision are also supporters of laws requiring women to undergo sonograms and listen to propaganda from doctors before receiving an abortion.

    In a March 7 piece for The Nation, Georgetown University law school professor and constitutional law expert David Cole provides, as usual for the professor, an accessible explanation about why the argument against the minimum coverage provision is unlikely to be invalidated by the high court.

    Not only is the argument against the minimum coverage provision on flimsy ground, it’s also not conservative. The argument is, in reality, “radically libertarian,” Cole writes.

    Cole states:

    We’ve seen this kind of libertarian constitutional argument before. In the early twentieth century, after the Industrial Revolution had concentrated economic power in employers’ hands, Congress and the states passed many laws designed to protect workers from exploitation. Time and again, the Supreme Court invalidated these statutes. It deemed the federal laws beyond Congress’s power to regulate interstate commerce because they were said to regulate the terms of production, manufacture or mining, all of which were said to precede interstate commerce. And it invalidated state labor laws as infringements on the “freedom of contract” protected by the due process clause.

    After the Depression, however, the court “overruled both lines of precedent it abandoned altogether the due process notion that economic regulation infringes on ‘freedom of contract,’” and “it has never since invalidated any law on that ground. And it ruled that in our integrated national economy, Congress is entitled to regulate on the presumption that all economic activity, not matter how local, affects interstate commerce.”

  • February 29, 2012

    by Jeremy Leaming

    According to at least some polling the Tea Party infused meme that the landmark health care reform law is constitutionally flawed because the law’s minimum coverage provision is a wild overreach of congressional power has had some success. But pollsters, thankfully, won’t determine whether the law stands or falls.

    The Supreme Court, which hears oral argument in the states’ challenge to the Affordable Care Act in late March, of course will have the ultimate say in his matter. And according to an array of constitutional law experts it’s a matter that shouldn’t be a difficult call.

    In a piece for the Federalist Society’s Harvard Journal of Law and Public Policy, UNC law professor and constitutional law expert William P. Marshall details why the ACA fits within the nation’s “constitutional culture,” as defined by the late Chief Justice William Rehnquist. (In Planned Parenthood v. Casey, Marshall writes, that for Rehnquist “constitutional culture is akin to the beliefs about constitutional meaning that are embedded in what he calls the ‘national psyche.’”)

    Opponents of the health care law say it goes against the nation’s commitment to “rugged individualism,” and against some conservatives' distrust of a strong central government.

    “But the individualist claim,” Marshall (pictured) writes, “runs up against a number of harsh realities that diminish its force." For starters, societal changes since the 1930s have worked to undermine the notion of a society held together by rugged individualists.

    Marshall, a former ACS Board member, notes, “The entry costs needed to succeed in this economy, for example, are far greater because of the shifts in the types of jobs that are available and because of the greater expectations placed on those joining the workforce. One reason for this is education. Succeeding in the current economy requires sophisticated training that cannot be mastered by the individual acting alone.”