individual mandate

  • April 1, 2013
    BookTalk
    The Tough Luck Constitution and the Assault on Healthcare Reform
    By: 
    Andrew Koppelman

    by Andrew Koppelman, John Paul Stevens Professor of Law, Northwestern University Law School

    Last spring, the Supreme Court came within one vote of taking health insurance away from over 30 million people, exposing a dangerous intellectual trend that, simply put, threatens to hurt you and your family. The near-success of the constitutional arguments against the Affordable Care Act is scary news, because those arguments silently rely on a philosophy at war with the most fundamental purpose of the Constitution: to empower the American people to solve their most pressing problems.

    The ACA included an individual mandate to have insurance, because no other path to universal insurance was workable. Even Republicans had supported such a mandate for years. Universal health insurance logically means that everyone must have insurance. 

    The litigation depended on a different ideal, which we can call Tough Luck Libertarianism: any obligation of healthy people to contribute to care for the sick is an intolerable imposition on liberty; if you get sick and can’t pay for care, that’s your tough luck.

    The constitutional challenge was devised by conservative lawyers who had, for a long time, been eager to impose limits on Congressional power. They proposed a new and previously unheard-of constitutional rule:  the state can’t make you do things or buy things. It may regulate only those who engage in some self-initiated action.

    This action/inaction distinction came advertised as a great bulwark of liberty. Actually, it was a crude bit of political opportunism. No one can live in the world without engaging in self-initiated actions all the time. This rule is not a serious constraint on government power. It allows Congress to act in every case in which the citizen has voluntarily taken some action. Most of us can’t realistically avoid having jobs and buying things, and it’s not much consolation to be told that I can avoid oppression if I live in the woods and eat berries. This limitation is unlikely to have any application after the ACA litigation, and is patently tailored to bring about a desired result in a single case.

  • April 16, 2012

    by Jeremy Leaming

    Plenty of legal scholars and others have been unmoved by the primary argument leveled against the Affordable Care Act, the broccoli argument, and justifiably so.

    But after oral argument in HHS v. Florida, where Supreme Court Justices Antonin Scalia and Samuel Alito appeared to embrace the simplicity of the argument – if Congress can make you purchase health care insurance, there will be no limiting principle on congressional power and it will soon mandate us all to buy broccoli – expressions of astonishment and concern abound.

    In a piece for The Atlantic, Harvard Law School Professor Einer Elhauge details why the broccoli argument is not only wobbly, but dangerously flawed.

    Scalia cited the the broccoli concern during oral argument when demanding the government’s lawyer to articulate a limiting principle on Congress’s power to regulate commerce among the states.  

    Elhauge notes first that the limiting principle has already been articulated the Supreme Court as follows: “a federal law must (1) involve economic regulation (2) that addresses a national problem (3) that affects interstate commerce.”  

    Walter Dellinger, former Solicitor General, articulated a limiting principle slightly differently during an ACS briefing on oral argument, saying “the power to regulate commerce among the states extends to regulation of those purchases, which are inevitable, of goods and services, which will be provided to the individual even if they have made no arrangements to pay for them, where the cost will be shifted to others in a way that undermines an undoubtedly constitutional regulatory scheme.”

    It’s the limiting principle already adopted by the Supreme Court through other cases that the challenges are itching to change, Elhauge says. (In an ACS Issue Brief, Simon Lazarus explains the radical nature of the challengers’ agenda to topple health care reform.)

    “They want the justices to read into the Commerce Clause a new limiting principle, one that bars laws mandating the purchase of any product,” Elhauge writes. “But however attractive that kind of new limiting principle might seem, it cannot be inserted into the Constitution by judicial fiat when it lacks support in constitutional text, history, or precedent.”

  • March 28, 2012

    by Jeremy Leaming

    So it appears just based on oral argument action, if you believe pundits, such as CNN’s Jeffrey Toobin that the high court’s conservative justices are ready to trash precedent and accept the simplistic arguments of the challengers that the Affordable Care Act’s minimum coverage provision is a wild overreach by the federal government.

    As noted in this ACSblog post, UCLA constitutional law professor Adam Winkler says we shouldn’t be surprised that the high court’s right-wing majority may be leaning this way. It has already proved it has no problem shunning precedent or being out-of-touch, for example see Citizens United v. FEC.

    In a piece for The Huffington Post, ACS President Caroline Fredrickson argued against the idea that the minimum coverage provision is “unprecedented,” as its challengers like to call it.

    “What is truly radical,” Fredrickson says, “is the economic theory the state and individual challengers are pushing, which calls for a greatly limiting the ability of Congress to address national concerns. It’s an argument that longs for the days when courts actively shut down congressional attempts to solve national problems.”

    Geoffrey Stone, a constitutional law expert and a member of the ACS board, explains, also in a Huffington Post article, why the law’s minimum coverage provision, which will require Americans who can afford to do so to starting carrying health care insurance in 2014, is seemingly so unappealing to the high court’s conservative wing. Primarily the conservative wing appears to be obsessed with a slippery slope – if folks can be required to purchase health care insurance then what’s next?

    Stone notes that the “slippery slope is a means of reasoning, not a conclusion. Every principle and decision has a slippery slope: The question is whether we can get off the slope before it reaches bad outcomes. In this instance, this is easy. The decisions of millions of individual Americans not to purchase health insurance (even though they can afford it) have a dramatic impact on the cost of health care for everyone else and on interstate commerce. This is clearly an appropriate matter for federal attention under the Commerce Clause.”

  • March 27, 2012

    by Jeremy Leaming

    The spin is in on today’s health care law oral arguments – Paul Clement, the attorney for the state’s challenging the law’s minimum coverage provision, is awesome, and the provision is in trouble.

    But, as noted yesterday by constitutional law professor Garrett Epps you’re on wobbly ground when predicting Supreme Court opinions based on oral argument theatrics. Sure, Clement is an outstanding high court litigator -- we’ll take it from SCOTUSblog founder Tom Goldstein who lavished praise on Clement at an oral argument preview last month, calling him one of the greatest attorneys of his generation.

    What we can tell from today’s oral argument is that the Solicitor General Donald Verrilli, Jr., largely focused on Congress’s constitutional authority to regulate interstate commerce. The government has also argued that Congress’s constitutional power to tax and spend also supports the minimum coverage provision. Most of the justices, however, we're glued to the commerce clause question.

    SCOTUSblog’s Lyle Denniston, a veteran Supreme Court correspondent, wrote of today’s oral argument that Justice Anthony Kennedy, “after first displaying a very deep skepticism,” provided toward the end of oral argument “the impression that he might yet be the mandate’s savior."

    Additionally, the high court’s four moderate to left-of-center justices appear inclined to vote in favor of the ACA provision, which requires many to start carrying a minimum amount of health care insurance in 2014.

  • 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.”