Health Care Reform

  • March 22, 2011

    This post is part of an ACSblog symposium marking the one-year anniversary of the Affordable Care Act.

    One year after the passage of the Affordable Care Act, opponents who question the law's constitutionality are still sounding unwarranted alarm bells that regulatory floodgates will open if this law is upheld in court, much as they have when other landmark laws were passed, former acting Solicitor General Walter Dellinger said during an ACS phone briefing today on legal challenges to the health care law.

    "The attacks on [the law] are exactly like the attacks on Social Security and the minimum wage law, where it was said that if the retirement age could be set by congress at 65 it could be set at 25. It was said that if Congress could set the minimum wage at $5 it could set min wage at $5,000," said Dellinger, chair of the appellate practice at O'Melveny & Myers. "The court in upholding the Social Security Act and the minimum wage laws made light of those arguments and so should they here."

    Dellinger, echoing comments he made during a recent panel discussion on the Affordable Care Act, said whether the landmark health care law is constitutional "is not a close question."

    "I don't think that people are going to be sitting around on the court wringing their hands waiting to see what Justice Kennedy thinks. I believe that Chief Justice Roberts will be in the majority and that he will decide the opinion himself," Dellinger said.

    During the 30-minute national call, Dellinger explained how the conversation about the legal challenges has been shaped by "really a few libertarians" and took questions from others on the call.

    Listen to the call here.

  • March 10, 2011
    Guest Post

    By Adam Winkler, professor of law, UCLA School of Law. This article is cross-posted at The Huffington Post.

    On Monday, the Tennessee legislature voted along party lines to join an interstate compact intended to exempt the state from having to follow the national healthcare law. The state's Republican governor is likely to sign the bill, and at least nine other states are considering similar action. Unfortunately for them, however, no interstate compact is going to free the states from the healthcare law.

    And, remarkably, proponents of the interstate compacts -- essentially contracts between two or more states -- are unwittingly helping President Obama's efforts to defend the law in court.

    Interstate compacts are just the latest in a growing line of futile efforts to overturn President Obama's signature piece of legislation, the Affordable Care Act. In January, House Republicans voted to repeal the law, although they knew President Obama would veto any such effort. Healthcare opponents also promoted state laws to "nullify" the federal law, despite the clear command in the U.S. Constitution that federal law is supreme over state law.

    As those efforts had no chance of working, one can only surmise that they were intended primarily as political theatre.

    Compared to these other actions, the interstate compact notion looks promising -- at least so long as one doesn't look too closely.

    Interstate compacts are commonplace contractual agreements that states use to handle regional problems. They are used to establish agencies and rules for transportation systems that traverse state lines (like the Metropolitan Area Transit Authority in and around D.C.), waterways between states (like the Port Authority of New York & New Jersey), and any number of other multi-state issues, from environmental protection to waste disposal to cross-border adoption.

    Such agreements are perfectly legitimate. In fact, the Constitution itself envisions them. Article I, section 10 of the Constitution provides, "No State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State." If Congress consents, therefore, states may enter into binding contracts with other states.

    Healthcare opponents are encouraging states to enter into a compact that would exempt them and their residents from the demands of the Affordable Care Act, especially the requirement that most individuals have insurance. Yet such a compact faces the same insurmountable hurdle as the House Republicans' repeal effort back in January. Any such compact would need to be signed by the president.

  • March 7, 2011

    Those interested in monitoring how the Supreme Court will rule on challenges to the Affordable Care Act should mark their calendars now for the last week in June of 2012, former acting solicitor general Walter Dellinger, chair of the appellate practice at O'Melveny & Myers, said during an ACS discussion about challenges to implementation of the health care law.

    And on that June  day when the Supreme Court does issue a decision, Chief Justice John Roberts will join the majority to uphold the law, Dellinger predicted.

    "I think at the end of the day Chief Justice Roberts will be in the majority to uphold this," Dellinger said. "He is thinking of a very long philosophical position as a chief justice and he would not want to adopt a principle that said that 25 or 30 or 40 years from now, the only way Congress could deal with a social problem is by providing a monolithic, single, governmental bureaucratic approach, rather than creating incentives for people to utilize choices within the free market. Why would someone who has grown up with conservative principles want to adopt that?"

    The panel discussion featured a keynote address by former Senator Tom Daschle, who predicted that, even if all goes well in implementing the Affordable Care Act, it will take at least a generation before the law fulfills its potential. But, he continued, it's potential worth fighting for.

    "This is a fight for the equality and the liberty of all Americans and their moral right to health security at long last," he said.

    As the debate that followed his remarks got under way, news broke that U.S. District Court Roger Vinson had issued a seven-day stay of his decision in Florida federal court striking down the health care law, allowing the Department of Justice time to appeal.

    "I think what's most important is that we have the news that we've just had, which is that the Vinson decision has actually been stayed," Center for American Progress Chief Operating Officer Neera Tanden said in response to the news. She continued:

  • March 3, 2011
    Getting It Done
    How Obama and Congress Finally Broke the Stalemate to Make Way for Health Care Reform
    Sen. Tom Daschle and David Nather

    By Sen. Tom Daschle, former Senate Democratic Leader and a senior policy advisor at DLA Piper.

    NOTE: This Book Talk, originally posted in November, 2010, is being reposted in conjunction with ACS's debate on the constitutionality of the Affordable Care Act, featuring Daschle. Watch a live simulcast of the event TODAY from 12 to 2 p.m. EST here.

    In our new book, Getting It Done, my co-author, David Nather, and I assert that with the passage of The Patient Protection and Affordable Care Act (ACA), for the first time this country is in a position to meaningfully address the critical cost, access and quality problems in health care that continue to confront our nation. Obviously, even the most ardent proponents and opponents would agree that the position we are in today represents only a start, not a finish, to the effort.

    If this were a football field, proponents of the ACA would be on about the thirty yard line with at least seventy yards to go. There will be fumbles, lost yardage and lost opportunities to score. But whether it gets done by making it to the goal line several times during the "game" depends, just like football, on both offensive and defensive strategies. There will continue to be great need for both.

    The defensive effort largely surrounds three specific threats that in varying degrees have already begun to play out. The first involves the court challenges to the law. One or more of the cases involving the authority of the federal government in health care policy will work its way to the U.S. Supreme Court. After reading the opinions of many constitutional experts, I remain reasonably optimistic that the Obama administration's position will be sustained.

  • February 24, 2011
    The Perils of Federalism
    Race, Poverty and the Politics of Crime Control
    Lisa L. Miller

    By Lisa L. Miller, an associate professor of political science at Rutgers University.
    Conventional wisdom holds that federalism is one of the greatest contributions that the United States has made to modern democratic politics. Americans generally laud federalism for its limitations on government power, its facilitation of policy innovation at regional levels, and the multiple opportunities it provides for political engagement of the citizenry. This view is vividly on display in the recent state lawsuits filed against the federal government claiming that the health care bill, passed by Congress and signed by President Obama, is unconstitutional. The primary legal claim in these suits is that, in passing the bill, Congress violated the principles of American federalism by exceeding its power under the commerce clause (Article I, Section 8) and by infringing on the 10th Amendment through policymaking traditionally reserved to the states.

    My concern here is not with the legal technicalities of the lawsuits but, rather, with the implicit assumptions about American federalism upon which they rely, particularly with respect to federalism's origins, purpose and functions. Traditional claims about the importance of limiting the scope of congressional authority and the benefits of decentralized decision-making are complicated by empirical investigations into the origins and impact of American federalism on actual politics.

    A key claim about federalism is that it serves to promote citizen engagement and democratic representation by facilitating political activity at the periphery of the polity, not just the center. This is implicit in the health care lawsuits' claim that congressional action threatens the democratic practices reserved to states. But this claim is undermined by my research on actual patterns of political participation across different legislative venues. As I demonstrate in my book, The Perils of Federalism: Race, Poverty and the Politics of Crime Control, political participation and policy innovation by broad segments of the population can be hindered by federalism. This is because the fragmented and multi-layered American political landscape exacerbates classic collective action problems that plague groups concerned with broad social problems. Indeed, American-style federalism facilitates political activity by the exceptionally highly organized and those with the most robust resources, even when those groups represent only a fraction of political viewpoints on a given issue. Furthermore, it exacerbates existing race and class stratifications because citizens in greatest need of broad and deep political mobilization are those with the least capacity to sustain it across the fractured political terrain of American politics.

    An example of this that emerges from the book is the success of the National Rifle Association, which manages to appear at legislative hearings in local city councils, multiple state legislatures and Congress whenever there is even the appearance of gun control legislation on the horizon in one of these venues. By contrast, people actually suffering from gun violence, accidents and suicides in the high-risk communities where guns are readily available are more diffuse and have far fewer resources to help them migrate across these many venues. In large urban areas there is intense political pressure to restrict gun access but cities are notoriously weak under our federal system and the interests of these groups are largely out-maneuvered in venues farther up the vertical federalism hierarchy.