health care insurance

  • December 18, 2014

    by Jeremy Leaming

    In a surprising, unsettling move late in the year, the U.S. Supreme Court decided to hear a challenge to an Obamacare provision integral to keeping the popular health care law functional.

    In case you missed them, we suggest some more interesting, persuasive and measured responses to the statutory challenge below. We provided other noteworthy and powerful articles, earlier in the fall, which are available in this post.

    The material we’re highlighting now is from legal scholars, who in different ways have examined the legal argument against crucial language in the Affordable Care Act meant to help low-income Americans afford health care coverage. (Also see the Dec. 18 piece for ACSblog by Georgia State University law school Professor Neil Kinkopf.)

    Andrew Koppelman, the John Paul Stevens Professor of Law and Professor of Political Science at Northwestern University, in a piece for the New Republic looks at the efforts to topple the ACA. A legal argument aside, Koppelman writes, “When is it acceptable to deliberately aim to harm huge numbers of people in order to score a symbolic point?” If the argument were to win at the Supreme Court, which is likely to hear oral argument early in 2015, “about 4.5 million low-and-middle workers” in numerous states would lose health care coverage, he notes.

    At The Incidental Economist, University of Michigan law school professor Nicholas Bagley, who posted for ACSblog earlier this year on the argument when it was before the D.C. Circuit, provides a grouping of his articles, posts and podcast discussions about the matter now before the Supreme Court.  “My first post,” he wrote was devoted to showing why “the government’s contextual reading of the ACA makes better sense of the statute than the challengers’ cramped reading of a single provision. A district court judge in D.C. endorsed that reasoning the day after I wrote the post; I wrote about his decision here.”

    A compelling and accessible look at the statutory challenge to the ACA comes from Professor David Ziff, a Law Lecturer at the University of Washington School of Law. Ziff focuses on the legal argument being made against the ACA, and the need to seriously engage it.

  • 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.