Health Care Reform

  • February 8, 2011
    Guest Post

    By Simon Lazarus, Public Policy Counsel, National Senior Citizens Law Center and author of the 2009 ACS Issue Brief, "Mandatory Health Insurance: Is It Constitutional?"
    ACS has this morning released a new issue brief by me, "The Health Care Lawsuits: Unraveling A Century of Constitutional Law and The Fabric of Modern American Government." This evening, from 7 - 8:30 p.m., ACS's Virginia Lawyer Chapter and the George Mason University School of Law Student Chapter are co-sponsoring a debate between GMU professor Ilya Somin, who is Editor of the Supreme Court Economic Review, and myself, moderated by Christopher Hayes of The Nation, over the issues vetted in the issue brief.

    The brief explains why the pending health care reform challenges constitute a bold bid for historic, sweeping constitutional change. If successful, they would be a major step toward reinstating the web of tight constitutional constraints on congressional authority, known as "Lochnerism," which conservative Supreme Court majorities repeatedly invoked during the first third of the 20th century to strike down economic regulatory laws. (Lochner v. New York, a 1905 Supreme Court decision that held maximum working hours legislation unconstitutional, launched and came to symbolize this period of conservative judicial activism.)

    The legal theories behind the lawsuits take dead aim at three bedrock understandings that inform the vision of a democratically governed, economically robust nation-state first reflected in Chief Justice John Marshall's foundational decisions interpreting the constitutional provisions prescribing federal economic policy authority, and reaffirmed in all Supreme Court decisions since the New Deal era. These understandings are:

    1. The federal government exists and is empowered to address objectives that states acting individually lack, in the words of the Framers, the "competence" to handle on their own. As Justice Anthony Kennedy expressed the principle, concurring in United States v. Lopez (1995): "Congress can regulate on the assumption that we have a single market and a unified purpose to build a stable national economy."

    2. To tackle those "truly national" problems, the federal government has the flexibility to pick solutions that are the most "competent" in practice. In the words of Justice Antonin Scalia, concurring in Gonzales v. Raich (2005) the national government "possesses every power needed to make [its solution] effective."

    3. The democratic branches, not the judiciary, have the principal constitutional writ to shape economic policy, and, accordingly, the courts are to defer to Congress and give it the running room necessary to target objectives and craft effective solutions.

  • February 7, 2011
    The criticism continues to mount over U.S. District Judge Roger Vinson's ruling in the Florida Attorney General's legal challenge to the landmark Affordable Care Act (ACA).

    Last week, a group of scholars at the Center for American Progress provided a devastating interactive assessment of the judge's opinion, revealing it to be one riddled with historical inaccuracies and teetering on a wobbly understanding of Supreme Court precedent.

    Now a leading constitutional law expert and Yale Law School professor has penned an op-ed for the Los Angeles Times offering a scathing critique of Vinson's work.

    Professor Akhil Reed Amar says that after reading Vinson's opinion, in which the judge invalidates the entire health care law because he says Congress does not have the constitutional authority to enact the law's individual responsibility provision, he found one thing immediately clear: "My students understand the Constitution better than the judge."

    Amar says the "central issue" in the legal challenges to the health care reform law is "how much power the Constitution gives Congress, and the landmark Supreme Court opinion on this topic is the 1819 classic, McCulloch vs. Maryland." Chief Justice John Marshall (right), Amar writes, said the Constitution provides Congress implied and expressed powers. There have been only two times, the professor continues, since 1937 that the Supreme Court has found that federal action goes beyond Congress's constitutional powers. Specifically those instances were ones that fell outside Congress's constitutional power to regulate commerce among the states.

    But the landmark health care law, Amar says, as do many other constitutional law experts, clearly regulates an industry that crisscrosses the entire nation. The health care law regulates an industry "that obviously spans state lines, involving billions of dollars and millions of patients flowing from state to state."

    He continues that there is nothing "improper in the means" that the Affordable Care Act uses to regulate that industry either. "Laws," he writes, "may properly regulate both actions and inactions, and in any event, Obamacare does not regulate pure inaction. It regulates freeloading. Breathing is an action, and so is going to an emergency room on taxpayers' nickel when you have trouble breathing."

    The opponents looking to tear down the landmark health care reform law should back politicians that support its repeal, Amar says, not "use seats on the lower courts to distort the Constitution, disregard applicable precedents and disrespect a duly elected Congress, which gave Americans in early 2010 exactly what the winning party platform promised in November 2008.

    In his conclusion, Amar notes another "judge named Roger," who gave the country a high court decision that ranks among the Supreme Court's most despicable opinions.

    Amar concludes:

    The case was Dred Scott vs. Sanford, involving a slave who sued for his freedom because he had lived with his master in places where Congress had banned slavery. In an opinion by Chief Justice Roger Taney, the court not only ruled against Scott, saying that even free blacks were not citizens and therefore had no right to sue; it also declared the Missouri Compromise, which had outlawed slavery in Northern territories, unconstitutional.

    History has not been kind to that judge. Roger Vinson, meet Roger Taney.

  • February 4, 2011
    Guest Post

    By Steve Vladeck and Amanda Frost, professors at American University Washington College of Law.
    One of the most remarkable aspects of Judge Vinson's January 31 decision invalidating the Patient Protection and Affordable Care Act ("PPACA" or "Act") was his conclusion that the individual mandate (which he found to exceed Congress's power) could not be severed from the rest of the Act. As such, Judge Vinson concluded that his only choice was to strike down the Act in its entirety, even though most of the 2,700-page bill has very little to do with the requirement that all Americans carry health insurance.

    And yet, as Judge Vinson acknowledged, and as is black-letter law, Congress's intent is the touchstone of severability analysis, and there is a presumption in favor of severability. As we explain below, Judge Vinson was mistaken both legally and logically in his conclusion that Congress would have wanted the entire statute to fall once the individual mandate was struck down. Congress enacted a statute with hundreds of provisions, many entirely unrelated to the individual mandate, and thus it is at best unclear whether or not Congress would have intended the rest of the Act to fall if the individual mandate were struck down. As such, the presumption in favor of severability should have led him to the opposite conclusion. Instead, Judge Vinson's unnecessary analysis smacks of the very judicial activism that his opinion so often decried.
  • February 4, 2011
    The federal court decisions striking an integral provision of the landmark health care reform law may be causing consternation among supporters of the law, but Georgetown University law school professor David Cole writes that defenders of the law "have both the better argument and the force of history on their side."

    In an essay for The New York Review of Books, Cole takes an extensive and accessible look at Congress's constitutional authority to regulate health care and concludes that the opponents are pinning their hopes on jurisprudence that the "Supreme Court has long since abandoned, and abandoned for good reason. To uphold Judge Hudson's [federal judge in Virginia who ruled against the health care law] decision would require the rewriting of several major and well-established tenets of constitutional law. Even the Supreme Court, as conservative a court as we have had in living memory, is unlikely to do that," Cole writes.

    The opponents of the health care reform law, the Patient Protection and Affordable Care Act, argue that they are concerned with "state's rights," and unlimited federal power. But Cole counters that opponents really carry a libertarian-based objection to "compelling individuals to act for the collective good, no matter who imposes the obligation."

    The Constitution, however, does not support the libertarian argument. Instead the nation's founding document provides Congress the power to regulate commerce, and to create laws "necessary and proper" to exercise congressional power.

    Regarding the commerce clause, Cole writes that around 1937 the Supreme Court recognized that "Congress's power to regulate ‘interstate commerce' became, in effect, the power to regulate ‘commerce' generally. (As Cole notes, the high court finally realized what many had long argued "and what the Depression had driven home - that in a modern-day, interdependent national economy, local production necessarily affects interstate commerce, and there is no meaningful distinction between ‘direct' and ‘indirect' effects.")

    Since then Supreme Court precedent has supported a broad view of Congress's power to regulate commerce. Cole writes:

    Under these precedents, a citizen's decision to forgo insurance, like the farmer's decision to forgo the wheat market and grow wheat at home, easily falls within Congress's Commerce Clause power. When aggregated, those decisions will shift billions of dollars of costs each year from the uninsured to taxpayers and the insured. As a practical matter, there is no opting out of the health care market, since everyone eventually needs medical treatment, and very few can afford to pay their way when the time comes.

    ...

    That one might affix the label ‘inactivity' to a decision to shift one's own costs to others does not negate the fact that such economic decisions have substantial effects on the insurance market, and that their regulation is ‘an essential part of a larger regulation of economic activity.'"

    Cole's entire essay is available here.

    In a separate piece for The New York Review of Books' "NYRblog," Cole notes the recent opinion from the federal judge in Florida invalidating the health care reform law, because of the individual coverage provision. Vinson, like Hudson, also relied on outdated precedent, to forge his opinion. But, as Cole writes, only days after Vinson's decision, Charles Fried, a Harvard law school professor and former Solicitor General during the Reagan administration, told the Senate Judiciary Committee that Vinson's "rational was clearly wrong, and that the health care law is plainly constitutional."

    Also on the health care litigation front, The Huffington Post reports that a federal judge in Missouri has dismissed a legal challenge to the individual coverage provision of the health care law. U.S. District Court Judge Keith Starret tossed aside the lawsuit saying the plaintiffs did not have standing to bring the case.

  • February 3, 2011
    Guest Post

    By Kathrine Jack, an attorney in Greenfield, Indiana.


    While national attention has focused on Congress's unsuccessful attempt to repeal the health care reform law, GOP members in state legislatures are looking to "nullify" last year's historic law by reviving rarely used constitutional arguments to do so.

    Measures currently pending in about a dozen state legislatures attempt to nullify health care reform by declaring the federal legislation unconstitutional and unenforceable within the state's borders.

    In Indiana, one of the states with a nullification bill pending, Senate Bill 505 purports to addresses the applicability of federal law in Indiana and "the inapplicability of certain federal law in Indiana." S.B. 505 directs that "A statute of the United States found inconsistent with the Constitution of the United States ... is not law in Indiana." After quoting that Ninth and Tenth Amendments of the U.S. Constitution, the bill then makes findings that the federal Patient Protection and Affordable Care Act is unconstitutional and that therefore, the law "is void in Indiana." The bill also creates a private right of action. While countless bills languish in state legislatures every year, S.B. 505 appears to be gaining traction and already has six state senators listed as co-authors. In Indiana, following a historic democratic win for Obama in 2008, republicans gained strong majorities in the state house and senate in the 2010 elections. Many of the new members espouse tea party values, including asserting that health care reform is unconstitutional. Republican Governor Mitch Daniels, mentioned as a presidential candidate, has not weighed in.

    Bills like Indiana's S.B. 505 are clearly an outlet for Republicans in state capitols to have a voice on the constitutionality of health care reform. As illuminated by a recent ACS Issue Brief and others, health care reform is on solid constitutional ground, and federal courts are currently addressing the question. But these nullification bills, being considered in other states, including Idaho, Maine, Montana, Nebraska, Oregon, Texas and Wyoming, raise additional, even more fundamental constitutional questions by presuming that state legislature have the power to do so. The claim that a state legislature could render a federal law unenforceable within the state raises questions of federalism not debated since perhaps the Civil War.

    The Framers seemed to have an answer. By looking at Article VI, Section 2 of the Constitution, statehouse legislators will note that federal law is "the supreme Law of the Land[.]"