individual mandate

  • September 26, 2011
    Guest Post

    By Simon Lazarus, Public Policy Counsel to the Federal Rights Project of the National Senior Citizens Law Center, frequent contributor to ACSblog, participant in ACS programs, and author of two ACS Issue Briefs on the legal challenges to the Affordable Care Act. Those Issue Briefs are available here and here.


    Last Friday, Sept. 23, the U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments on the constitutionality of the Affordable Care Act (ACA) individual mandate to carry health insurance or pay a tax penalty. Major media barely covered the event, perhaps afflicted by ACA litigation fatigue (three circuits have already ruled on the issue). This is unfortunate, because, from the outset, the argument took an unexpected turn, with potentially significant implications for the outcome of the ACA cases.

    The two Republicans on the three-judge panel, Reagan appointee Laurence Silberman and Bush II appointee Brett Kavanaugh, displayed in-depth grasp and even sympathy for arguments supporting the mandate. During the first half of the session, when attorney Edward White of the conservative advocacy group American Center for Law & Justice outlined his case for overturning the mandate, they fired more, and more aggressive, questions than did the third member of the panel, Jimmy Carter appointee Harry Edwards. To be sure, when the Justice Department’s turn came, the two Republican appointees threw equally probing – if somewhat more predictable – challenges at Deputy Assistant Attorney General Beth Brinkmann. Moreover, they appeared less than satisfied with Brinkmann’s answers on some key issues. But, against the backdrop of opinions upholding the mandate by respected Republican judges Stanley Marcus (in dissent on the Eleventh Circuit) and, especially, Jeffrey Sutton (in the majority on the Sixth Circuit), Friday’s argument suggests that, among Republican appellate judges with legal and political throw-weight – which both Silberman and Kavanaugh possess – there may be substantial resistance to overturning the ACA mandate. At a minimum, neither judge showed an appetite for reflexively parroting Republican talking points, along the lines of the Virginia and Florida district court decisions that struck the mandate down last December and January.

  • September 6, 2011

    by Jeremy Leaming

    As debate continues to roil over the constitutionality of the landmark health care reform law’s mandate that individuals, starting in 2014, maintain a minimum coverage of health care insurance, Drake University constitutional law expert Mark Kende explains why the most controversial provision of the Affordable Care Act, and the one that is at the center of the litigation challenging the measure, is integral to the law’s intent – to ensure more Americans have health care insurance. 

    Several federal appeals courts have already weighed in on the constitutionality of the individual responsibility provision, and the U.S. Court of Appeals for the Fourth Circuit may issue an opinion soon on the matter.

    In a recent column for the Des Moines Register, Kende, the James Madison Chair in Constitutional Law, and Director of the Drake Constitutional Law Center, touches upon the constitutionality of the provision, but highlights why the provision is crucial to ensuring that more people are covered by health care insurance and that insurers cannot discriminate against people with pre-existing conditions.

    Kende says that if the individual responsibility provision of ACA were invalidated it would be impossible for the act to cover 30 million Americans who are now uninsured or prevent insurers from declining coverage to those with pre-existing conditions.

    Kende writes:

    If John and Jane Doe are free to wait to buy insurance until they are sick, then they will drain the money from the system – creating a tragedy of the commons. For example, due to their lack of planning and preventive action, John and Jane may end up having to be treated in the emergency room which escalates costs dramatically for everyone.

    Insurance only works when there is a balance of payments in and payments out. If we tell insurance companies that they can no longer discriminate against pre-existing conditions, but we allow patients to buy insurance at whim, then we create an incentive for patients to only buy insurance once they need medical care – a surefire strategy for bankrupting the system.

    Kende highlights the June opinion from the U.S. Court of Appeals for the Sixth Circuit, which upheld the individual responsibility provision against a constitutional challenge. One of the judges who found the provision constitutional, Jeffrey Sutton, appointed by President George W. Bush and a Federalist Society favorite, “agreed with the majority position that Congress has the jurisdiction to regulate the insurance market in this manner in order to ensure regulations are effective.”

    Simon Lazarus, public policy counsel to the National Senior Citizens Law Center, and author of two ACS Issue Briefs on the ACA, writes about Judge Sutton’s opinion in this ACSblog guest post.

    For more analysis and coverage of the litigation surrounding the ACA, see the Affordable Care Act Resource Page.

  • July 8, 2011

    by Jeremy Leaming

    First it was broccoli, now it's Weight Watchers.

    The right-wing blogosphere is gushing over George Will’s latest attempt to paint the minimum coverage provision of the Affordable Care Act (ACA), as a wild overreach by the Obama administration. If the government can force individuals to carry health care insurance, surely it can enact a law requiring us to eat healthy or force obese Americans to join Weight Watchers.

    During a recent discussion, “Battle for the Constitution,” on ABCNews’s “This Week,” Will claimed that obesity impacts interstate commerce, and therefore does it not follow that Congress has the constitutional power to require overweight people to join Weight Watchers. Time’s Richard Stengel said he did not know, and Georgetown University professor Eric Dyson said the question is open.

    Their responses didn’t satisfy Will, who kept demanding to know whether Congress can force heavy Americans into Weight Watchers. But Will’s spin on the broccoli law argument did excite the right-wing blogosphere. (Breitbart.TV, “George Will Brilliantly Traps Liberal Panelists With Obamacare Constitutional Challenge.”) Will’s spin is not that new by the way – he has been asking the Weight-Watchers question for some time. See his columns here and here.

    But there are plenty of constitutional law experts who have had no problem quickly trashing outlandish slippery slope arguments, such as Will’s. (Will may fancy himself a constitutional law expert, but he is not. A decent pundit, he may be.)

    Earlier this year before a Senate Judiciary Committee hearing on the “Constitutionality of the Affordable Care Act,” Charles Fried, a Harvard law school professor and former solicitor general under President Reagan and Walter Dellinger, partner at O’Melveny & Meyers and former acting solicitor general under President Clinton, both testified that liberty interests protected pursuant to the Constitution would prohibit the government from mandating that people engage in behavior like purchasing gym memberships or more broccoli, or joining Weight Watchers.

    In his written testimony before the Committee, Dellinger states:

    The minimum coverage provision of the Affordable Care Act tests no limits and approaches no slippery slope. Notwithstanding the improbable hypothetical put forth by those bringing these lawsuits, Congress never has and never would require Americans to exercise or eat certain foods. Were Congress to consider laws of that kind infringing on personal autonomy, the judiciary would have ample tools under the liberty clause of the Fifth Amendment to identify and enforce constitutional limits. What the Affordable Care regulates is not personal autonomy, but commercial transactions.

    Suggestions that sustaining the minimum coverage provision would mean that Congress could mandate the purchase of cars or comparable items are also disingenuous. The provision requiring minimum health insurance cannot be viewed in isolation. It is an integral part of regulating a health care market in which virtually everyone participates. No one can be certain he or she will never receive medical treatment. Health care can involve very expensive medical treatments that are often provided without regard to one’s ability to pay and whose cost for treating the uninsured is often transferred to other Americans. These qualities are found in no other markets.

    Dellinger also took a shot at slippery slope arguments, noting they too are often “slippery.”

    “Where the issue is simply whether something falls within the scope of a subject matter over which Congress is given jurisdiction to legislate, the parade of horribles marches all too easily,” he wrote. “If it is within the scope of regulating commerce to set a minimum wage, one might argue, then Congress could set the minimum wage at $500 an hour. Would that force us to conclude that Congress therefore cannot set any minimum wage at all? Were Congress to legislate the extreme hypotheticals envisioned by those bringing these challenges, there will be ample constitutional doctrines available for the judiciary to use for the imposition of limits.”

    David Orentlicher, a law professor at Indiana University School of Law-Indianapolis and co-director of the Hall Center for Law and Health, also dispatched the slippery slope argument in a recent op-ed for The Indianapolis Star.

    “Today Congress requires us to buy insurance for the good of our health. Tomorrow, Congress might require us to buy broccoli for the good of our health or a General Motors car for the good of our economy,” Orentlicher wrote. “We would begin to slide down the slippery slope of officious government and hit bottom at the ultimate nanny state.

    “Nothing could be further from the truth,” he continued. “It has been seven decades since the Supreme Court recognized the power of Congress to regulate the way we spend our dollars.”

    In those decades, Orentlicher noted, Congress has never adopted such far-fetched mandates, like the one Will says could be coming if the high court upholds the constitutionality of the ACA’s minimum coverage provision. The liberty interests protected by the Constitution have prevented such mandates, and so has the political process. Orentlicher provides a lengthier defense of the minimum coverage provision for the University of Southern California law Review.

    During a panel discussion on the ability of the federal government to address national problems at the 2011 ACS National Convention, Dellinger also blasted right-wingers for bemoaning the minimum coverage provision, especially since they are typically the same bunch that celebrates government efforts to force women to wait lengthy periods for abortions or to listen to tired lectures about alternatives to abortion.

    Dellinger said, “We hear the talks about government intrusions into health care – that this represents an extraordinary step about liberty. And I just cannot, any longer, refrain from making the observation that it is really ironic and disturbing to hear that liberty lecture come from people talking about government takeover of medical care, many of whom would legislate the imposition upon women of unnecessary waiting periods, government scriptured lectures, compulsory sonogram viewings, and government mandated unsafe medical procedures.”

  • June 29, 2011

    The U.S. Court of Appeals for the Sixth Circuit upheld as constitutional the individual minimum coverage provision of the landmark health care reform law, The Wall Street Journal reports.

    The three-judge panel in Thomas More Law Center v. Obama voted 2-1 in upholding the provision, which requires some individuals to start carrying health care insurance in 2014. Judge Jeffrey Sutton, appointed to the Sixth Circuit by President George W. Bush, concurred in the judgement upholding the health care law.

    “Congress had a rational basis for concluding that the minimum coverage provision is essential to the Affordable Care Act’s larger reforms to the national markets in health care delivery and health insurance,” Judge Boyce F. Martin Jr., wrote. The panel upheld a lower court opinion that found the minimum coverage provision did not run afoul of Congress’s power to regulate commerce.

    The Sixth Circuit also dismissed the argument that the minimum coverage provision of the Affordable Care Act (ACA) does not regulate economic activity, writing, “The minimum coverage provision regulates activity that is decidedly economic.”

    “The Act considered as a whole makes clear that Congress was concerned that individuals maintain minimum coverage not as an end in itself, but because of the economic implications on the broader health care market,” Martin wrote. “Virtually everyone participates in the market for health care delivery, and they finance these services by either purchasing an insurance policy or by self-insuring. Through the practice of self-insuring, individuals make an assessment of their own risk and to what extent they must set aside funds or arrange their affairs to compensate for probable future health care needs.

    “Thus, set aside the Act’s broader statutory scheme, the minimum coverage provision reveals itself as a regulation of the activity of participating in the national market for health care delivery, and specifically the activity of self-insuring for the cost of these services,” Martin continued.

    Read the decision here.

    Recently at the ACS 10th Anniversary National Convention, a panel of constitutional law experts and litigators explored the constitutionality of the minimum coverage provision. Indiana University law school professor Dawn Johnsen said the constitutionality of the provision, which is integral to other provisions of the law, especially the one that bars insurance companies from denying health coverage to people with pre-existing conditions, is an easy call. Johnsen said longstanding precedent regarding Congress’s commerce clause power allows for this type of regulation.

    Walter E. Dellinger III, partner at O’Melveny & Myers, and a former Acting U.S. Solicitor General, also defended the constitutionality of the minimum coverage provision. Dellinger took umbrage with claims from right-wing advocates that the ACA, and in particular, its minimum coverage provision, is an overreach by the federal government that greatly erodes liberty.

    Dellinger said, “We hear talks about government intrusions into health care – this represents an extraordinary step about liberty. And I just cannot, any longer, refrain from making the observation that it is really ironic and disturbing to hear that liberty lecture come from people talking about government takeover of medical care, many of whom would legislate the imposition upon women of unnecessary waiting periods, government scripted lectures, compulsory sonogram viewings, and government mandated unsafe medical procedures.”

    Video of the panel discussion is available here.  

    For more information about the numerous legal challenges to the health care reform law, see ACS’s “The Affordable Care Act Resources Page.”

  • June 9, 2011

    ACS Executive Director Caroline Fredrickson and the Cato Institute’s Michael F. Cannon took to NPR’s “Tell Me More,” to debate the constitutionality of a provision of the landmark health care reform law that requires individuals, starting in 2014, to maintain health care insurance.

    The call focused on some of the legal arguments aimed at scuttling the Patient Protection and Affordable Care Act, and followed yesterday’s oral argument in one of the primary lawsuits lodged against the Act.

    Citing some of the questioning from yesterday’s oral argument in the U.S. Court of Appeals for the Eleventh Circuit, NPR host Michel Martin asked Fredrickson about the opponents’ oft-repeated claim that Congress has overreached by requiring individuals to purchase health care insurance.

    Fredrickson said the opponents’ argument and framing of the questions avoid the central point, which involves the breadth of the Constitution’s commerce clause.

    “The commerce clause, which is the authority under which Congress passed the health care law, says nothing about activity or inactivity,” she said. “The touchstone really, as it has been under Supreme Court precedent for decades and decades -- is that does this affect interstate commerce? And when you are talking about an industry that affects 17 percent of our economy, it clearly does affect commerce; it’s clearly within the scope of the commerce clause."

    Fredrickson continued, “The real issue is, does Congress have the power under the commerce clause to regulate the health care industry, one of the biggest industries of our economy.”

    And “absolutely,” Congress has exercised its power in a constitutional manner, Fredrickson said.

    Cannon offered the Right’s claims that Congress has taken an expansive view of the commerce clause, and that if the Affordable Care Act’s individual responsibility provision were upheld by the courts, Congress will have “virtually unlimited control over the economy.” 

    Cannon, however, suggested that Congress would not have run afoul of constitutional strictures, if it had simply expanded Medicare.

    Fredrickson, responded, “The ironic moment here is that Michael admits that Medicare is fully founded in the Constitution – so we can have a government-run, universal program that Congress passed, but you can’t have a privately run system that Congress can help regulate.”

    The entire segment is below or available here. Also for more information on the various legal challenges to the health care law, visit ACS’s Affordable Care Act Resources page.