individual coverage provision

  • July 2, 2012

    by Nicole Flatow

    Following widespread media coverage of Bill O’Reilly’s promise to American Constitution Society President Caroline Fredrickson that he would “apologize for being an idiot” if the Supreme Court upheld the Affordable Care Act as Fredrickson predicted, O’Reilly delivered a begrudging apology on his show Monday night.

    “I’m not really sorry,” he said, “but I am a man of my word, so I apologize for not factoring in the John Roberts situation. Truthfully, I never in a million years would thought the chief justice would go beyond the scope of the commerce clause to date and into taxation. I may be an idiot for not considering that.”

    This is a curious answer from O’Reilly, since he did consider the tax argument when Fredrickson explained during that same March 26 segment that the Affordable Care Act could be justified under the Constitution’s power to tax.

    In response, O’Reilly told Fredrickson she would “lose and your arguments are specious” and predicted the Supreme Court would strike down the individual coverage provision by a vote of 5-4.

    The following night, O’Reilly raised Fredrickson’s tax argument yet again, saying:

  • July 2, 2012

    by Nicole Flatow

    On March 26, American Constitution Society President Caroline Fredrickson stood up to Bill O’Reilly and stood by the constitutionality of the Affordable Care Act on Fox News’ “The O’Reilly Factor.”

    She countered his “polemic exaggeration” with the “calm and factual,” even explaining that the penalty for not purchasing health care is justified under the power to tax.  

    O’Reilly, exasperated by his inability to match Fredrickson’s factual assertions, concluded with his prediction that the law would be struck down by the Supreme Court.

    “If I’m wrong,” he said, “I will come on and I will play your clip, and I will apologize for being an idiot.”

  • March 30, 2012
    Guest Post

    By Rebecca L. Brown, Newton Professor of Constitutional Law at the USC Gould School of Law


    During Tuesday’s argument, Justice Scalia asked whether the individual mandate, even if “necessary,” was also “proper.” He may well have had good reasons to focus on this language, and the Necessary and Proper Clause, to which it refers.

    In 2005, Justice Scalia wrote separately in a Commerce Clause case to emphasize that conduct can be regulated if it is “an essential part of a larger regulation of economic activity….”  He added, “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.” The question in the case, Gonzales v. Raich, was whether the federal drug laws could reach the cultivation and possession of marijuana for personal use as authorized by state law. Justice Scalia wrote that, when the federal government puts in place a comprehensive regulatory scheme that falls within the power to regulate interstate commerce (such as the interstate drug laws) then it may also impose additional requirements, even over matters that it could not regulate in isolation (such as wholly intrastate, non-commercial activity, like the growing of marijuana)—if those additional requirements are “necessary and proper” to effectuate the larger federal scheme.   

    Many of us read that plausible analysis to suggest an analogous approach to the Affordable Care Act. Congress has unquestioned authority to regulate the interstate and commercial matters of health care and insurance. In turn, as Justice Scalia made clear in Raich, additional rules that are necessary and proper to the functioning of the overall system of regulating those markets can be constitutionally adopted by Congress-- even if those additional rules might be of questionable validity if passed in isolation. 

    There is no dispute that the individual mandate is necessary, even essential, to effectuate the congressional policy of requiring insurers to offer coverage without regard to pre-existing conditions. Without the individual mandate, people would be free to wait to buy insurance until they needed expensive medical care, which would undercut the role of insurance as a pooling of risk. Assuming, then, that Justice Scalia would maintain consistency with his prior views, many thought that he could be counted on as a vote to uphold the individual mandate.

    But, apparently realizing the import of his prior opinion, Justice Scalia on Tuesday laid the groundwork for backing away from it. While conceding that the individual mandate is “necessary” to the federal scheme, he questioned whether it is also “proper.” Why might it not be proper? In an exercise of utterly circular reasoning, Justice Scalia suggested that it might not be “proper” because it goes beyond the limits of Congress’s limited powers.   

  • March 26, 2012

    The Following is an excerpt from Harvard Law Professor Charles Fried’s testimony during a Senate Judiciary Committee hearing on the constitutionality of the Affordable Care Act.* Prof. Fried was former solicitor general under President Ronald Reagan. This post is part of an ACSblog online symposium around oral arguments on the Affordable Care Act.


    I come here today not as a partisan supporter of the Obama Administration’s health care legislation. I am not an expert in health care economics or policy, and I am sure there are many arguments for and against the wisdom and feasibility of this legislation. I do not enter into that debate. I am an expert on constitutional law, which I have been teaching and practicing for many years and on which I have written books and articles, most to the point my 2004 book, SAYING WHAT THE LAW IS: THE CONSTITUTION IN THE SUPREME COURT. I also am not one who believes that Article 1, Section 8 of the Constitution is in effect a grant of power to Congress to regulate anything it wishes in any way it pleases. There are limits to what may plausibly be called commerce. I agree entirely with the decision in United States v. Morrison that section 13981 of the Violence Against Women Act cannot be brought within Congress’s power to regulate commerce. Indeed I sat at counsel table with Michael Rosman when he successfully argued that case. Though gender-motivated violence is despicable, cowardly, and in every state in the union criminal, a man beating up his wife or girlfriend is not commerce. Neither is carrying a gun in or near a school, as the Court correctly held in United States v. Lopez. The arguments to the contrary required torturing not only constitutional law but the English language. But the business of insurance is commerce. That’s what the Supreme Court decided in 1944 in United States v. South-Eastern Underwriters Ass’n and the law has not departed from that conclusion for a moment since then. One need only think of the massive regulation of insurance that is represented by ERISA to see how deep and unquestioned is that conclusion.

    If insurance is commerce, then of course the business of health insurance is commerce. It insures an activity that represents nearly 18% of the United States economy. (In this connection recall Perez v. United States, which held that a very local loan sharking operation was within Congress’s power to regulate commerce.) And if health insurance is commerce, then the health care mandate is a regulation of commerce, explicitly authorized by Article I, Section 8 of the Constitution.

  • 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: