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Home > Blog > All > health care reform law

health care reform law

  • June 18, 2012

    Justice Scalia, the Opportunistic Originalist

    by Jeremy Leaming

    We likely shouldn’t be surprised by Justice Antonin Scalia’s “flip-flop,” as TPM puts it, on precedent supporting modern understanding of the Constitution’s commerce clause.

    TPM’s Sahil Kapur reports that in his forthcoming book, Scalia says the Supreme Court’s 1942 opinion in Wickard v. Filburn wrongly construed the scope of the commerce clause. As Kapur and many others have noted, including the Obama administration, Scalia cited Wickard in a 2005 opinion concluding that a law barring personal cultivation of marijuana for medical use was not beyond the scope of the commerce clause.

    In that case, Gonzales v. Raich, Scalia lodged a concurring opinion, citing precedent in holding, “where Congress has the authority to enact a regulation of interstate commerce, ‘it possesses every power needed to make that regulation effective.’”

    In an e-mail to TPM, constitutional law expert Adam Winkler wrote, “This is typical Scalia.”

    Winkler, a law professor at UCLA, continued:

    He respects precedents when they fit his conservative ideology and disregards them when they don’t. He claims that history should guide judges. But nothing about the history of the commerce clause has changed. What’s changed is the political implications of the commerce clause. When it’s being invoked for law and order conservatives, he favors Wickard. When invoked by liberals to support healthcare reform, he thinks Wickard is bad law.

    Once again, we see that Scalia’s orginalism is a charade.

    There is also the spectacle of oral argument, where Scalia not only revealed a wobbly understanding of the health care insurance system but affinity for the simplistic, but radically libertarian arguments lobbed against the Affordable Care Act’s minimum coverage provision. The minimum coverage provision is integral to the health care reform law, requiring those who can afford to do so to obtain a minimum amount of the health care coverage starting in 2014.

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    Tags:
    Originalism, Commerce clause, Supreme Court, Constitutional Interpretation and Change, ACS 2012 Convention, Affordable Care Act, Gonzales v. Raich, health care reform law, Justice Ruth Bader Ginsburg, Professor Adam Winkler, Simon Lazarus, TPM, Wickard v. Filburn
  • April 10, 2012

    Washington Post Trumpets Partisan ‘Study’ Saying Health Care Law Will Swell Deficit

    by Jeremy Leaming

    A Washington Post front-page headline declares that the Affordable Care Act “will add $340 billion to deficit, new study finds.” It’s an eye-catching title, especially in light of the Congressional Budget Office’s assessment that the law would lead to a decline in the deficit.

    Jonathan Chait writing for Daily Intel says The Post’s article is hardly the blockbuster story it is dressed up to be.

    For starters there is no such study. Instead, Chait points out that The Post is actually talking about a partisan paper “published by the Mercatus Center, a Koch-funded organization that produces some quality work as well as a fair amount of schlock that does not meet the standards of your typical university economics paper. This paper is an example of the latter.”

    The paper, by Charles Blahous, a research fellow at the Koch-funded organization and former Bush administration official, relies, Chait writes, on a simplistic conceptual trick producing a “bizarre assumption” that the new health care form law can only add to the deficit because of new spending.

    The White House has also weighed in on The Post’s coverage of the Blahous paper. Writing for The White House Blog, Jeanne Lambrew blasts the paper for promoting a false claim, and cites the work of the CBO and the Office of Management and Budget, which projects “lower Federal budget deficits as a result of the law.”  

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    Tags:
    Economic, Workplace and Environment Regulation, Affordable Care Act, Budget Deficits, Charles Blahous, health care reform law, Jonathan Chait, Mercatus Center, White House
  • April 9, 2012

    President’s Comments on Health Care Case, Within Serious Constitutional Discourse, Law Prof. Writes

    by Jeremy Leaming

    Pundits, especially those on the Right, claim President Obama’s recent comments that the Supreme Court should not lightly invalidate a law regulating commerce – in this case the Affordable Care Act – reveal a former constitutional law school professor who doesn’t understand judicial review. (Or according to this Washington Post piece, the president was employing language intended to mislead.)

    Actually the president’s words, despite the over-the-top reactions from pundits, were not terribly difficult, even for non-lawyers, to discern. Obama was merely pointing out that the Supreme Court has not, and should not, easily invalidate laws by Congress, especially those that regulate commerce. Attorney General Eric Holder in a letter to a federal appeals court, also said the president’s comments were grounded in principle, not hyperbole.

    In a guest column for the Jurist, law school professor Craig Jackson takes note of commentary from MSNBC’s Joe Scarborough and The Wall Street Journal’s editorial page blasting the president’s comments, and argues that Obama had not “forgotten the basic rule,” of judicial review.

    Instead Jackson says the president’s comments “had more to do with arguments that have been lobbed back and forth over judicial review, advising judicial restraint, for over two centuries ….” Plenty, Jackson, notes has been written about the need for federal courts to show restraint when considering challenges to laws passed by Congress.

    “The president of course agrees and is certainly not stepping out of mainstream constitutional law discourse to suggest that the Court exercise a little discretion when dealing with decisions by a political majority,” Jackson write.

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    Tags:
    Commerce clause, Supreme Court, Constitutional Interpretation and Change, Affordable Care Act, Attorney General Eric Holder, E.J. Dionne, health care reform law, judicial review, Jurist, Professor Craig Jackson, Simon Lazarus
  • November 10, 2011

    Why Judge Silberman’s Decision on Health Care Reform Law Matters

    by Jeremy Leaming

    As the Supreme Court justices near a decision on whether to grant review of a legal challenge to the Obama administration’s landmark health care reform law, the Patient Protection and Affordable Care Act, a potentially persuasive path for addressing the matter has emerged for the high court’s conservative wing, Simon Lazarus writes for Slate.

    Lazarus, public policy counsel for the National Senior Citizens Law Center, takes a closer look at this week’s opinion from the U.S. Court of Appeals for the District of Columbia Circuit, noting that the majority opinion written by Reagan-appointee Judge Laurence H. Silberman “directly confronted the challenge to the individual mandate [the ACA’s integral provision requiring individuals to carry health care insurance starting in 2014], and rejected it outright. That’s a formidable statement from a conservative icon – and a warning shot to the justices of the Supreme Court.”

    Silberman’s opinion has grabbed attention because of his conservative bona fides, but Lazarus says the real power behind it rests on the methodology used to dismantle opponents’ arguments against the law.

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    Tags:
    Fidelity to the Constitution, Originalism, Commerce clause, Supreme Court, Other courts, Constitutional Interpretation and Change, Affordable Care Act, health care reform law, Judge Laurence Silberman, President Obama, Simon Lazarus, U.S. Court of Appeals for the District of Columbia Circuit
  • November 8, 2011

    Federal Appeals Court Dismisses Challenge to Health Care Reform Law

    by Jeremy Leaming

    Turning aside a Religious Right group’s challenge to the Obama administration’s signature law, a “conservative-leaning” federal appeals court today upheld the constitutionality of an integral provision of the health care reform law.

    In a 103-page opinion, the U.S. Court of Appeals for the District of Columbia Circuit supported a lower district court’s opinion that found constitutional the law’s minimum coverage provision, which requires individuals, starting in 2014, to maintain health care coverage, or pay a penalty, called a “shared responsibility payment.” Specifically the district court held that the minimum coverage provision was a legitimate regulation of economic activity pursuant to the Commerce Clause and the Necessary and Proper Clause.

    ACS Board Chair Geoffrey R. Stone lauded today’s opinion, saying it represented yet another rejection of opponents’ cramped vision of the Constitution:

    “If those who challenge the constitutionality of the Affordable Care Act had their way, our federal government would be unable to tackle serious national problems,” Stone, the Edward H. Levi Distinguished Service Professor at the University of Chicago Law School, said. “It is particularly noteworthy that today's opinion was written by Judge Laurence H. Silberman, one of the most respected conservative jurists in the nation. Judge Silberman, who was appointed to the bench by President Ronald Reagan and was awarded the national Medal of Freedom by President George W. Bush, flatly rejected the constitutional challenge, explaining that 'the right to be free from federal regulation . . . yields to the imperative that Congress be free to forge national solutions to national problems.'"

    Simon Lazarus, public policy counsel for the National Senior Citizens Law Center, told ACSblog, “There is no judge more respected in conservative legal and political circles than Laurence Silberman, and it is hard to imagine anything that could take more of the wind from the sails of ACA opponents than this terse, unequivocal ruling that their case against the ACA individual mandate has no ‘real support in either the text of the Constitution or Supreme Court precedent.’”

    Lazarus continued, “Especially coming in the wake of the Sixth Circuit Jeffrey Sutton’s similarly sweeping rejection of the opponents’ case, and in particular, coming virtually on the eve of the Supreme Court’s November 10 conference on whether to accept review of the pending ACA cases, the Court’s conservative bloc is facing strong recommendations to handle this case as judicial conservatives, not libertarian radicals or political activists.”

    Lazarus is author of two ACS Issue Briefs, one on the constitutionality of ACA’s minimum coverage provision, and the other addressing opponents’ arguments against the scope of the federal government’s power to regulate commerce.

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    Tags:
    Commerce clause, Supreme Court, Other courts, Constitutional Interpretation and Change, Affordable Care Act, healt