Health Care Reform

  • February 9, 2011
    The Cato Institute has unleashed an ad campaign apparently intended to help Americans understand the Constitution that instead apes the Tea Party's skewed views of the nation's founding document, as Elizabeth Wydra writes in a post for the Constitutional Accountability Center's Text & History blog.

    Cato's ad, appearing in newspapers, such as The Washington Post, says that citing the Constitution is important, but understanding it is "critical." It then provides a page of text that, as Wydra points, makes clear that Cato, a self-described libertarian group, has missed the boat on understanding.

    As Wydra points out, the Cato ad takes aim at constitutional powers of Congress, specifically its powers to tax, to regulate commerce and its broad power to enact laws "necessary and proper" to carry out its constitutional duties. Cato claims that Congress's powers have "since the New Deal been read as authorizing Congress to do far more than was ever imagined by those who wrote the Constitution," leading to an out-of-control federal government.

    Cato's wrong, Wydra says. She writes:

    Undeterred by the actual text and history of our Constitution, Cato joins an impressive array of forces that have been doing everything they can to convince Americans that our Constitution somehow establishes a weak central government incapable of acting to address national issues like health care reform, environmental protection, and financial system reform.


    This is nothing less than a concerted campaign to plant in Americans' heads the ideas that the federal government has transgressed the bounds of our Nation's charter and dangerously overreached.

    The problem is that the Tea Party and their allies are seeking to return to a different founding document than our actual U.S. Constitution - what they really want is a return to the failed Articles of Confederation. As my colleague David Gans and I explained in Constitutional Accountability Center's Issue Brief entitled Setting the Record Straight: the Tea Party and the Constitutional Powers of the Federal Government, the Articles of Confederation established the weak central government apparently so beloved by Cato and the Tea Party. But the Articles' experiment in weak central government was a complete failure, which is why it was jettisoned, as the Founders came together to craft a ‘more perfect union' that expressly vested the federal government with enumerated but significant powers to act in the Nation's interest. Cato's ad today pretends that the Articles were never discarded, and that the idea of a hobbled, weak central government is not a historical loser.

    Yesterday, ACS published an Issue Brief by Simon Lazarus who says the forces behind the legal theories aimed at bringing down the landmark health care law are similarly looking for a return to a time when the Constitution was understood as sharply limiting the federal government's ability to address nation issues.

    "If successful," Lazarus writes, "the challenges would be a major step toward reinstating a web of tight constitutional constraints on congressional authority that conservative Supreme Court majorities repeatedly invoked during the first third of the 20th century to strike down economic regulatory laws. In the late 1930s and thereafter, the Supreme Court jettisoned this conservative activist jurisprudence, replacing it with constitutional interpretations supporting Progressive Era, New Deal, Great Society, and kindred reforms."

  • February 8, 2011
    Another of the nation's leading constitutional law scholars has weighed in on the festering legal debate over the landmark health care reform law, finding that in all likelihood the Supreme Court won't find much of a conundrum over Congress's authority to enact the law.

    Instead, Laurence H. Tribe, a distinguished Harvard Law School professor and author, says the legal challenges aimed at the Affordable Care Act's individual responsibility provision, which requires some Americans to purchase health care insurance starting 2014, are political objections, not legal ones.

    Tribe writes in an op-ed for The New York times that Congress's enactment of the individual responsibility provision does not run afoul of its powers pursuant to its constitutional powers to regulate commerce or to tax and spend. He writes:

    Since the New Deal, the court [U.S. Supreme Court] has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law's constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has power to regulate?

    Tribe adds that the current Supreme Court is not likely to "be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic ‘activity,' not ‘inactivity,' like the decision not to purchase insurance. This distinction is illusory. Individuals who don't purchase insurance they can afford have made the choice to take a free ride on the health care system. They know that if they need emergency-room care that they can't pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper choice for federal regulation."

    Today ACS released an Issue Brief that examines what would happen if the Supreme Court were to adopt the legal theories driving the lawsuits lodged against the Affordable Care Act.

    Simon Lazarus writes in "The Health Care Lawsuits: Unraveling a Century of Constitutional Law and the Fabric of Modern American Government," that the opponents of the health care law are trying to advance radical constitutional change that would sharply limit the ability of Congress to effectively respond to national issues, such as the rising costs of health insurance and the large number of uninsured. If the opponents' legal theories were to win the day, Lazarus says other landmark laws and programs, such Social Security, Medicaid, Medicare and civil rights laws would all be in danger. An executive summary, and the Issue Brief are available here.

  • February 8, 2011
    Guest Post

    By Simon Lazarus, Public Policy Counsel, National Senior Citizens Law Center and author of the 2009 ACS Issue Brief, "Mandatory Health Insurance: Is It Constitutional?"
    ACS has this morning released a new issue brief by me, "The Health Care Lawsuits: Unraveling A Century of Constitutional Law and The Fabric of Modern American Government." This evening, from 7 - 8:30 p.m., ACS's Virginia Lawyer Chapter and the George Mason University School of Law Student Chapter are co-sponsoring a debate between GMU professor Ilya Somin, who is Editor of the Supreme Court Economic Review, and myself, moderated by Christopher Hayes of The Nation, over the issues vetted in the issue brief.

    The brief explains why the pending health care reform challenges constitute a bold bid for historic, sweeping constitutional change. If successful, they would be a major step toward reinstating the web of tight constitutional constraints on congressional authority, known as "Lochnerism," which conservative Supreme Court majorities repeatedly invoked during the first third of the 20th century to strike down economic regulatory laws. (Lochner v. New York, a 1905 Supreme Court decision that held maximum working hours legislation unconstitutional, launched and came to symbolize this period of conservative judicial activism.)

    The legal theories behind the lawsuits take dead aim at three bedrock understandings that inform the vision of a democratically governed, economically robust nation-state first reflected in Chief Justice John Marshall's foundational decisions interpreting the constitutional provisions prescribing federal economic policy authority, and reaffirmed in all Supreme Court decisions since the New Deal era. These understandings are:

    1. The federal government exists and is empowered to address objectives that states acting individually lack, in the words of the Framers, the "competence" to handle on their own. As Justice Anthony Kennedy expressed the principle, concurring in United States v. Lopez (1995): "Congress can regulate on the assumption that we have a single market and a unified purpose to build a stable national economy."

    2. To tackle those "truly national" problems, the federal government has the flexibility to pick solutions that are the most "competent" in practice. In the words of Justice Antonin Scalia, concurring in Gonzales v. Raich (2005) the national government "possesses every power needed to make [its solution] effective."

    3. The democratic branches, not the judiciary, have the principal constitutional writ to shape economic policy, and, accordingly, the courts are to defer to Congress and give it the running room necessary to target objectives and craft effective solutions.

  • February 7, 2011
    The criticism continues to mount over U.S. District Judge Roger Vinson's ruling in the Florida Attorney General's legal challenge to the landmark Affordable Care Act (ACA).

    Last week, a group of scholars at the Center for American Progress provided a devastating interactive assessment of the judge's opinion, revealing it to be one riddled with historical inaccuracies and teetering on a wobbly understanding of Supreme Court precedent.

    Now a leading constitutional law expert and Yale Law School professor has penned an op-ed for the Los Angeles Times offering a scathing critique of Vinson's work.

    Professor Akhil Reed Amar says that after reading Vinson's opinion, in which the judge invalidates the entire health care law because he says Congress does not have the constitutional authority to enact the law's individual responsibility provision, he found one thing immediately clear: "My students understand the Constitution better than the judge."

    Amar says the "central issue" in the legal challenges to the health care reform law is "how much power the Constitution gives Congress, and the landmark Supreme Court opinion on this topic is the 1819 classic, McCulloch vs. Maryland." Chief Justice John Marshall (right), Amar writes, said the Constitution provides Congress implied and expressed powers. There have been only two times, the professor continues, since 1937 that the Supreme Court has found that federal action goes beyond Congress's constitutional powers. Specifically those instances were ones that fell outside Congress's constitutional power to regulate commerce among the states.

    But the landmark health care law, Amar says, as do many other constitutional law experts, clearly regulates an industry that crisscrosses the entire nation. The health care law regulates an industry "that obviously spans state lines, involving billions of dollars and millions of patients flowing from state to state."

    He continues that there is nothing "improper in the means" that the Affordable Care Act uses to regulate that industry either. "Laws," he writes, "may properly regulate both actions and inactions, and in any event, Obamacare does not regulate pure inaction. It regulates freeloading. Breathing is an action, and so is going to an emergency room on taxpayers' nickel when you have trouble breathing."

    The opponents looking to tear down the landmark health care reform law should back politicians that support its repeal, Amar says, not "use seats on the lower courts to distort the Constitution, disregard applicable precedents and disrespect a duly elected Congress, which gave Americans in early 2010 exactly what the winning party platform promised in November 2008.

    In his conclusion, Amar notes another "judge named Roger," who gave the country a high court decision that ranks among the Supreme Court's most despicable opinions.

    Amar concludes:

    The case was Dred Scott vs. Sanford, involving a slave who sued for his freedom because he had lived with his master in places where Congress had banned slavery. In an opinion by Chief Justice Roger Taney, the court not only ruled against Scott, saying that even free blacks were not citizens and therefore had no right to sue; it also declared the Missouri Compromise, which had outlawed slavery in Northern territories, unconstitutional.

    History has not been kind to that judge. Roger Vinson, meet Roger Taney.

  • February 4, 2011
    Guest Post

    By Steve Vladeck and Amanda Frost, professors at American University Washington College of Law.
    One of the most remarkable aspects of Judge Vinson's January 31 decision invalidating the Patient Protection and Affordable Care Act ("PPACA" or "Act") was his conclusion that the individual mandate (which he found to exceed Congress's power) could not be severed from the rest of the Act. As such, Judge Vinson concluded that his only choice was to strike down the Act in its entirety, even though most of the 2,700-page bill has very little to do with the requirement that all Americans carry health insurance.

    And yet, as Judge Vinson acknowledged, and as is black-letter law, Congress's intent is the touchstone of severability analysis, and there is a presumption in favor of severability. As we explain below, Judge Vinson was mistaken both legally and logically in his conclusion that Congress would have wanted the entire statute to fall once the individual mandate was struck down. Congress enacted a statute with hundreds of provisions, many entirely unrelated to the individual mandate, and thus it is at best unclear whether or not Congress would have intended the rest of the Act to fall if the individual mandate were struck down. As such, the presumption in favor of severability should have led him to the opposite conclusion. Instead, Judge Vinson's unnecessary analysis smacks of the very judicial activism that his opinion so often decried.