Commerce clause

  • February 8, 2012

    by Jeremy Leaming

    Opponents of the Affordable Care Act’s provision that requires people who can afford it to obtain minimum health insurance coverage or pay a penalty with their annual income tax return have loudly argued that it upsets the balance between the regulatory powers of the federal government and state governments.

    But in a recent piece for The Times-Picayune, a New Orleans daily, distinguished law professor at the University of Southern California Rebecca L. Brown says the federalism argument is “false.”

    First she notes there is “no serious argument that health care and insurance purchasing are not economic, or that they affect purely local interests – the arguments in all prior Commerce Clause challenges.” (Indeed the Constitution’s commerce clause provides Congress the authority to regulate conduct that substantially affects interstate commerce. The health care market accounts for more than 17 percent of the U.S. economy, and everyone, at some point, participates in it or is constantly at risk of incurring substantial medical expenses.)

    Opponents of the law are aware of the parameters of the commerce clause and federal court precedent surrounding it, and are actually pushing an individual-rights argument. “The Affordable Care Act challenge,” Brown writes, “powerfully evokes that libertarian tradition by arguing that the requirement to purchase health insurance invades personal decision-making.”

    But that argument, Brown continues, is as wobbly as the federalism argument.

  • January 9, 2012

    by Jeremy Leaming

    As time quickly approaches for the U.S. Supreme Court to consider the highly politicized challenges to the Obama administration’s landmark domestic accomplishment, health care reform, anxieties are rising among supporters over the strategy used to craft and defend the law.

    Simon Lazarus, an expert on the Patient Protection and Affordable Care Act, or ACA, writes in a new piece for Slate that such concern is misplaced, at best.

    Lazarus, author of an ACS Issue Brief on the constitutionality of the ACA’s minimum coverage provision, which requires certain people to purchase health care coverage starting in 2014 or pay a penalty via their income tax return filings, notes that some preeminent health policy experts, such as Paul Starr, argue that lawmakers would have been smarter to root the minimum coverage provision in Congress’s power to tax, instead of both in its power to regulate commerce and to levy taxes.

    Acknowledging that Starr’s “stature is beyond question,” Lazarus, public policy counsel for the National Senior Citizens Law Center, maintains that “on this matter of legal strategy, his certitude seems naïve. Indeed, especially in light of the ACA mandate’s actual track record in court to date, his take seems downright backward.”

    First, Lazarus notes that opponents of the administration were itching to scuttle its health care reform law -- regardless of what constitutional power the mandate was rooted.

    He writes, “The steam powering their opposition sprang from two sources: 1) partisan politics, part Tea Party zeal and the desire to discredit Barack Obama and obstruct his agenda; and 2) a hope, animating the libertarian legal advocates who staffed the lawsuits, of replacing existing law with pre-New Deal, so-called ‘Lochner Era’ doctrines that would invalidate substantially all 20th–century regulatory, civil rights, and safety net legislation.”

    Next Lazarus defends the administration’s case for the ACA, saying before the current high court it looks best in the “Commerce-Clause format.”

    Lazarus concludes, in part, that a string of “eminent conservative appellate judges have blown off opponents’ demands to overturn this allegedly ‘unprecedented’ federal power-grab. On the contrary, Republican appointees have concluded that upholding the ACA mandate is compelled by the text of the Commerce Clause and Supreme Court precedent, that it is no more ‘coercive’ than other measures, such as dedicated taxes and tax write-offs undergirding major existing health-insurance laws, and even, that the ACA’s approach could be a valuable model for conservative designs to privatize other components of the social safety net.”

    On Jan. 6, the Department of Justice filed a brief with the high court defending the ACA.

  • January 6, 2012

    by Jeremy Leaming

    The Obama administration’s signature domestic achievement, the Patient Protection and Affordable Care Act, which requires many people to purchase health care coverage in 2014, is a reasonable and constitutional means to provide millions of uninsured with health care coverage, the Department of Justice argues in a brief lodged today with the Supreme Court.

    The brief “arguments track the Obama administration’s arguments before lower courts,” Brian Beutler reports for TPM, which also provides access to the 130-page document.

    As Beutler notes, the DOJ explains why the law’s so-called individual mandate is a constitutional means to help millions of Americans afford health insurance. The law bars insurance companies from denying coverage or charging more to people who have pre-existing medical conditions. For that provision of the law to work, however, the law must require individuals who can afford health insurance to obtain minimum coverage or pay a penalty via their annual income tax returns.

    The DOJ’s brief argues that the law is a permissible regulation under its constitutional authority to regulate commerce and its taxing power.

    The federal government already regulates the health care market – Medicare and Medicaid are examples. However, millions of people, because of a lack of additional regulation have been unable to afford health care insurance or been denied it because of preexisting conditions.

    The DOJ argues that the law’s so-called individual mandate will bridge the gap.

    “The uninsured shift tens of billions of dollars of costs for the uncompensated care they receive to other market participants annually,” the brief states. “That cost-shifting drives up insurance premiums, which, in turn, makes insurance unaffordable to even more people.”

  • November 14, 2011
    Guest Post

    By Fazal Khan, a law professor at the University of Georgia specializing in health law. Prof. Khan has both law and medical degrees.


    Today the U.S. Supreme Court confirmed what most of us expected, announcing that it will review the constitutionality of the Affordable Care Act. As the justices begin to deliberate, they would be wise to look to a masterful amicus brief by prominent constitutional law scholar Kathleen Sullivan as a meaningful template for Supreme Court action.

    Sullivan’s brief, in which she asks the Court to grant cert in the 11th Circuit case that the justices today accepted, addresses those arguments most likely to concern Justice Anthony Kennedy, the swing vote on the Court, and provides ample support from Justice Kennedy’s record to suggest he will and should vote to uphold the law. Before detailing the arguments in Sullivan’s brief, filed on behalf of the California Endowment ("a private foundation committed to the expansion of affordable, quality health care for all Californians"), I summarize below how we reached this point.

  • November 14, 2011

    by Jeremy Leaming

    As expected the Supreme Court announced this morning that it will review a legal challenge to President Obama’s landmark health care reform law, the Patient Protection and Affordable Care Act.

    The high court, as noted by SCOTUSblog and The New York Times, set aside five and half hours of oral argument in the case involving the U.S. Court of Appeals for the 11th Circuit opinion invalidating an integral provision of the health care reform law. In August, the 11th Circuit ruled 2-1 that the minimum coverage provision, which requires some individuals to carry health care insurance starting in 2014 or pay a penalty, is unconstitutional. In late September, the Department of Justice asked the Supreme Court to review the 11th Circuit opinion.

    White House Communications Director Dan Pfeiffer, said in a statement released earlier today, “We know the Affordable Care Act is constitutional and are confident the Supreme Court will agree.”

    Georgetown University law school professor Randy Barnett, an opponent of the Affordable Care Act, told The New York Times, “It is high time for the high court to strike down this unconstitutional, unworkable and unpopular law.”  

    ACS President Caroline Fredrickson said:

    The Supreme Court has agreed to provide a welcome resolution to the ongoing debate over the constitutionality of the Affordable Care Act. Long-standing precedent shows that Congress can regulate commerce in the national interest. If Congress can’t regulate an industry with such a huge impact on the U.S. economy, is there any limit on a judge’s ability to undermine federal stewardship of equally pressing issues?

    Time and again the high court has reaffirmed the established power of lawmakers to address national problems with national solutions. We eagerly await a clear and categorical statement by the Court affirming the Act’s constitutionality and ensuring that the Constitution is not a straightjacket on the legislative branch. Only a radical or cramped reading of Congress's constitutional power to regulate commerce could lead the Court to find the law unconstitutional.

    Just last week, the U.S. Court of Appeals for the District of Columbia Circuit ruled in favor of the law’s minimum coverage provision. Judge Laurence H. Silberman, a Reagan appointee, concluded, in part, “The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local – or seemingly passive – their individual origins.” In an article for Slate, Simon Lazarus, author of ACS Issues Briefs on the health care law, and public policy counsel for the National Senior Citizens Law Center, explains why Silberman’s opinion could carry considerable influence for the high court’s conservative justices.