Affordable Care Act

  • November 5, 2017
    Guest Post

    by Simon Lazarus

    *Simon Lazarus is a lawyer and writer who has frequently contributed to this blog on legal issues related to the health reform wars and other matters. 

    In endlessly excoriating President Barack Obama’s administration of the Affordable Care Act, ACA opponents featured a once obscure constitutional provision, the Article II clause that directs the President to “take care that the laws be faithfully executed.” Legally, the charge that Obama had breached his “take care” obligation was patently meritless, and Obama’s assailants never took their bombast seriously enough to substantiate it, let alone fit it into a claim to take to court. 

    Indeed, no court has ever invoked the Take Care Clause as a basis for constraining alleged executive overreach. There are obvious reasons for this. If there were an articulated standard for defining a violation of the clause, it could presumably be comparatively complicated to meet it. A jumping off analogy might be former Justice William Rehnquist’s dictum, in the 1985 case Heckler v. Chaney, suggesting that courts must defer to executive branch decisions not to initiate enforcement proceedings, unless an “agency has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.” In that vein, to make out a violation of the president’s take care responsibility, one would likely have to demonstrate a pattern of actions that undermine a law, or laws, and – because of the clause’s focus on good faith (“faithful execution”) – actions that hamstring the law intentionally. While bad intentions can be, and often are, proven by objective, circumstantial evidence, executive officials bent on nullifying a law have presumably had sufficient savvy to cloak wrongful intent behind well-orchestrated procedures that would deter a judge from finding or a litigant from hanging her case on an allegation that they did in the law on purpose.

    Until now.

  • February 28, 2017
    Guest Post

    by Sam F. Halabi, Scholar, O’Neill Institute for National and Global Health Law, Georgetown University and Associate Professor, University of Missouri School of Law

    President Donald Trump is expected to devote at least part of his speech this evening to his vision for the replacement of Obamacare. It is therefore a good time to take stock of what alternatives GOP legislators have floated so far and what might end up getting stitched together to form the outline of such a vision. 

    On January 23, Senators Susan Collins (R-Maine) and Bill Cassidy (R- La.) introduced the Patient Freedom Act, which would let states that had opted into Obamacare keep their expansion dollars or, alternatively, offer subsidies for states to create an auto enrollment system for catastrophic coverage plans with bare bones preventative services also covered. Federal subsidies would be based strictly on enrollment, not income, and states could use federal subsidies to prefund health savings accounts that would cover some (no one knows how much) of the gap between $0 and the high deductibles charged under catastrophic plans. People could, of course, opt out of coverage.

    On January 25, Senator Rand Paul (R-Ky.) introduced his Obamacare Replacement Act which would provide tax credits for health savings accounts, repeal the individual mandate and minimum coverage conditions, and loosen Obamacare’s already existing mechanism for “selling insurance across state lines.”  Paul’s vision, consistent with his libertarian outlook, is to liberalize the individual insurance market so that consumers can purchase policies tailored to their needs or that consumer or other affiliated groups may leverage bargaining power through negotiations with insurance providers. 

    On February 10, a leaked version of a House bill (apparently without a catchy title), would repeal the individual mandate, subsidies based on people’s income, and all of the Obamacare taxes. It would reduce Medicaid spending and give states money to create high-risk pools for certain categories of people with pre-existing conditions.   Starting in 2020, the federal government would extend tax credits based on age, not income. Insurers would be allowed to charge much more to cover older versus younger persons. Like Paul’s plan, it would eliminate minimum coverage requirements and, of course, defund Planned Parenthood. It would be paid for by limiting the tax deduction for generous group healthcare plans. Analogously to the individual mandate, it would provide a penalty for failing to maintain continuous coverage.

  • November 13, 2015
    Guest Post

    by Samuel A. Marcosson, Professor of Law, University of Louisville Louis D. Brandeis School of Law

    On November 6, the Supreme Court granted cert in seven cases (which it promptly consolidated for briefing and argument as Zubik v. Burwell) to resolve the issue it left open when it ruled in Burwell v. Hobby Lobby that private, for-profit companies are entitled to a religious exemption from the Affordable Care Act’s mandate to provide contraceptive coverage to their employees. At issue is whether the accommodation the government provides to nonprofit employers satisfies the requirements of the Religious Freedom Restoration Act (RFRA). If it doesn’t, employees of these nonprofits will, like their counterparts at Hobby Lobby, lose their contraceptive coverage. A decision exempting the nonprofits from the contraceptive mandate would make Zubik one of the landmarks of the Term, and a disaster in the Court’s religion jurisprudence.

    Zubik tests the limits of the dangerous path the Court began to walk in Hobby Lobby. The majority opinion there departed from the Court’s long-standing approach in religious accommodation cases of carefully considering the impact of a proposed accommodation on third parties who would be burdened by it. In Hobby Lobby, of course, those third parties were the employees who lost coverage for contraceptive care that, under the ACA, is an essential element of comprehensive health insurance and which, for many, avoids enormous expense and “helps safeguard the health of women for whom pregnancy may be hazardous, even life threatening.” The Court gave almost no weight to the interests and needs of those employees who would be deprived of the essential coverage the ACA had mandated.

    The Court faces an even starker choice in Zubik because the claim on the other side of the scale, the burden claimed by the employers to their religious exercise, is more attenuated than it was in Hobby Lobby. A nonprofit that objects to providing contraceptive coverage receives an accommodation simply by certifying to HHS that it has a religious objection. As Justice Alito admitted in Hobby Lobby, a nonprofit which files the certification is “effectively exempted . . . from the contraceptive mandate.” In other words, to be accommodated under the ACA regulations, all the objecting nonprofits must do is tell HHS exactly what they are telling the Supreme Court: that they have a religious objection to providing contraceptive coverage.

  • September 16, 2015

    by Nanya Springer

    In the New Republic, Simon Lazarus of the Constitutional Accountability Center examines Judge Rosemary Collyer’s decision to entertain an unrealistic effort by House Speaker John Boehner aimed at destroying the Affordable Care Act.

    In The New York Times, Noam Scheiber reports that as more men feel entitled to take time off for family reasons, the number of fathers filing discrimination lawsuits against their employers is increasing.

    Amy Goldstein, Jeff Guo and Lazaro Gamio report in The Washington Post’s Wonkblog that while nine million people have gained health care coverage since 2013, wages and poverty levels have remained stagnant and income inequality remains high.

  • August 3, 2015
    Guest Post

    by Simon Lazarus, Senior Counsel, Constitutional Accountability Center

    *This post originally appeared on Balkinization.

    Chief Justice John Roberts sent President Obama off for the July 4 holiday in what must have been a good mood, secure that his signature legislative accomplishment, the Affordable Care Act, had survived a second lawsuit designed to cripple it.  In King v. BurwellRoberts had mobilized a 6-3 majority to reject a claim by health reform opponents that ACA-prescribed tax credits were not available on federally run exchanges.  In addition to helping secure Obama’s legacy, the decision evidently bumped up Obama’s public approval ratings.  But the celebration must be tempered.  This big win is not the President’s doing, nor that of the Executive Branch he controls.  Instead, it was due to two conservative justices, the Chief and Associate Justice Anthony Kennedy, whose agendas, while generally divergent from his, meshed on this important occasion.  How often will these stars align again? 

    That question is not academic.  King v. Burwell is by no means the last case in which the President’s political opponents are seeking to cancel or gut his key initiatives.  Indeed, two currently await decisions in lower federal courts. The first lawsuit is Texas’ challenge to the Administration’s immigration policy—to defer, on a case-by-case basis, removal of some four million undocumented immigrants who do not fall within DHS priorities for enforcing the nation’s immigration laws. The second lawsuit is House Republicans’ challenge to significant components of the administration’s ACA implementation.  A third challenge, to the EPA’s proposed Clean Power Plan —the crown jewel of Obama’s anti-global warming agenda— is likely when its regulations are finalized in early August.

    Over the next three days, I’ll discuss the upcoming challenges to Obama’s policy agenda. I begin, however, with a discussion of what Chief Justice Roberts’ opinion in King v. Burwell might mean for these lawsuits, and others that may follow them.