ACA Oral Arguments Blogging Symposium

  • March 30, 2012
    Guest Post

    By Steven D. Schwinn, Associate Professor of Law, The John Marshall Law School. This post is part of an ACSblog online symposium on oral argument in HHS v. Florida.

    At one point in our history, about a hundred years ago, the Supreme Court measured congressional authority and its limits based on formal categories.  For example, the Court said that Congress had authority to regulate “commerce,” but not “manufacturing.”  It said that Congress had authority to regulate matters with a “direct” effect on commerce, but not those that had an “indirect” effect.  And it ruled that Congress could regulate matters of “national” concern, but not those of “local” concern.
     
    These formal categories had no support in the text, history, practice, or precedent of the Constitution.  Yet an activist Court created and used them to flex its muscle to sharply curtail congressional authority based only on its own ideological views about government power and state sovereignty.  This cramped, formalistic, and ideologically-driven jurisprudence predictably failed, and we happily put it to rest in 1937. 
     
    But the ACA litigation now threatens to resurrect it.
     
    The states’ case against the minimum coverage provision depends on a formalistic approach that takes us right back to the rejected jurisprudence of the early twentieth century.  For example, the states argued that the minimum coverage provision exceeds congressional authority because it is a “requirement,” not a “regulation.”  They said that provision goes beyond congressional Commerce Clause authority because it regulates “inactivity,” not economic “activity.”  And they argued that it exceeds the commerce authority because it regulates before an individual enters the market, not “at the point of” market entry.  Justice Kagan highlighted this problem in Tuesday’s argument, but the states’ claims seemed to gain at least some traction with as many as five of the Justices, presaging a potential move back to the discredited jurisprudence of the past.
     
  • 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 29, 2012
    Guest Post

    By Fazal Khan, a law professor at the University of Georgia specializing in health law. Professor Khan has both law and medical degrees. This post is part of an ACSblog online symposium on oral argument in HHS v. Florida.


    On Wednesday afternoon the Supreme Court heard oral arguments on whether the states can challenge the federal government’s expansion of Medicaid. Representing 26 states that oppose ACA in its entirety, former Solicitor General Paul Clement went first claiming that the federal government is “coercing” states to accept this unwanted expansion of Medicaid. As expected, the “liberal” justices pounced on Paul Clement’s central argument. Whereas Clement seemed very cocksure Tuesday arguing against the minimum coverage provision, on Wednesday he was not as deft in parrying the skeptical attacks from the justices, including Antonin Scalia and the chief justice.

    Clement did regain his poise at the end during a strongly delivered (yet still substantively weak) rebuttal. Solicitor General Don Verrilli bounced back admirably after what can be fairly described as a difficult day on Tuesday. He was much more assertive and confident in pushing back against the “conservative” justices and possessed a strong command of the history of Medicaid and previous mandatory expansions of the program which really seem no different than the expansion at issue today.            

  • March 28, 2012
    Guest Post

    By Sergio Eduardo Muñoz, Senior Policy Analyst, Health Policy Project, Office of Research, Advocacy, and Legislation, National Council of La Raza. This post is part of an ACSblog online symposium on oral argument in HHS v. Florida.


    Yesterday’s Day 2 Affordable Care Act (ACA) arguments at the Supreme Court involved the centerpiece of both health care reform and its legal challenges by examining whether the individual responsibility requirement to carry health insurance exceeds Congress’s powers under the Constitution. And unfortunately, it didn’t take long for it to become painfully clear that this question of enormous consequence may very well split down ideological lines. During his confirmation hearings, Chief Justice Roberts used the analogy that a federal judge is like an umpire, objectively calling balls and strikes under commonly accepted rules. If anything good came out of Tuesday’s acrimonious argument, maybe we can finally put that misleading visual to rest. The Justices’ sharp comments on the constitutionality of the responsibility requirement made clear that not only are the Court’s ideological wings calling these pitches differently, it’s not even clear they’re playing the same game.

    Before describing today’s fireworks, however, some cold facts underlying today’s arguments and what the responsibility requirement does and does not do. If the responsibility requirement was in effect today, also referred to as the “individual mandate,” only 7% of the country under-65 would have to newly buy insurance or pay the tax penalty for non-compliance. Of those, over half would receive generous subsidies to assist in the purchase of insurance in newly-regulated markets. The vast majority of Americans would not have to decide how to satisfy the responsibility requirement because they already have insurance or would be exempt from purchase because of the economic strain. Take the Hispanic community, for example. Considering uninsured Latino children in comparison to other groups are disproportionately underenrolled in Medicaid and CHIP, despite the fact that Hispanics are about two times more likely than Whites to qualify for public health insurance, the odds are slim that this community would have to choose between new insurance and the assessment. This truth, unfortunately, has not been successfully communicated.

  • March 27, 2012
    Guest Post

    By Adam Winkler, professor of law, UCLA School of Law. This post is part of an ACSblog online symposium on oral argument in HHS v. Florida.


    The two days of oral argument into President Obama's health care reform law have been notable for their lack of surprises.

    On the first day, the Court considered whether the Anti-Injunction Act barred the lawsuits challenging the individual mandate. Although this was always considered the sleeper issue of the case, there are few stronger trends in the Supreme Court these days than judicial assertiveness. A Court that could decide a disputed presidential election in Bush v. Gore; unleash Citizens United; and repeatedly wade into presidential war powers should have little hesitancy reaching out to decide the fate of the Affordable Care Act. So when the Justices breezily ignored the plain language of the AIA, it was predictable. The Court wants to decide all of the major issues in American politics, including this.

    On day two, the Court looked at the individual mandate. One thing that always seemed beyond the pale to me was the idea that, when it came to the mandate, the votes of Justice Scalia and Chief Justice Roberts were in play. Just because Scalia voted to uphold the federal drug laws in Gonzalez v. Raich should never have fooled anyone into thinking he'd vote to uphold the mandate, and his aggressive questioning of the government on the mandate indicated he's likely to vote to strike it down. The same can be said for Roberts, who for seven years now has been confounding the expectations of those who believed he'd really push for unanimous, narrow rulings that avoided constitutional questions, as he promised in his confirmation hearings. His voting record is strongly conservative and his desire to protect the institutional legitimacy of the Court is remarkable mainly for its lack of manifestation.