Health Care Reform

  • June 21, 2012
    Guest Post

    By Erin Ryan, a Fulbright Scholar in China. She is a professor of law at Lewis & Clark Law School, where she will return this summer.  Ryan is also the author of Federalism and the Tug of War Within.This piece first appeared on RegBlog.


    This month, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution. 

    In the “Obamacare” cases, the Court considers whether the Affordable Care Act (“ACA”) exceeds the boundaries of federal authority under the various provisions of the Constitution that establish the relationship between local and national governance. Its response will determine the fate of Congress’s efforts to grapple with the nation’s health care crisis, and perhaps other legislative responses to wicked regulatory problems like climate governance or education policy. Whichever way the gavel falls, the decisions will likely impact the upcoming presidential and congressional elections, and some argue that they may significantly alter public faith in the Court itself. But from the constitutional perspective, they are important because they will speak directly to the interpretive problems of federalism that have ensnared the architects, practitioners, and scholars of American governance since the nation’s first days. 

  • May 30, 2012

    by Jeremy Leaming

    The arguments lodged against the health care law’s minimum coverage provision have been described by constitutional law experts as radically libertarian or terribly misguided. But during oral argument before the Supreme Court, the right-wing bloc, led by Justice Antonin Scalia appeared eager to endorse the challengers’ arguments against an integral provision of the Affordable Care Act. We’ll likely know sometime in June whether the high court’s conservative wing was indeed persuaded by the challengers’ arguments.

    In a guest post for Balkinization, Rob Weiner, a partner at Arnold & Porter LLP, provides greater detail to the attacks on the health care law’s minimum coverage provision writing they “reflect an effort to codify nostalgia as legal doctrine.” 

    The “most obvious throwback” is the liberty argument, Weiner says. Opponents of the health care law attack the minimum coverage provision as a serious affront to liberty. The minimum coverage provision will require some Americans starting in 2014 to purchase a minimum amount of health care insurance.

    The affront to liberty, Weiner writes “is the right not to obtain insurance – by any other name, freedom to contract.”

    In the Supreme Court’s 1905 Lochner v New York opinion, the majority held that the freedom to contract was “part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution.” Weiner notes that Lochner thus barred New York from regulating conditions of some workers. And in its 1923 Adkins v. Children’s Hospital opinion, the Court relied on this so-called freedom to contract to protect employers from adhering to the minimum wage law.

  • May 22, 2012

    by Jeremy Leaming

    University of Notre Dame’s religious leader the Rev. John Jenkins claims the string of federal lawsuits challenging the Obama administration’s health care policy on birth control is all about protecting religious freedom. But in reality the lawsuits are on wobbly legal ground, and Jenkins’ assertion about protecting a cherished First Amendment freedom is tired.    

    Like a federal lawsuit lodged earlier this year on behalf of Ave Maria University, a Catholic institution in Florida, the new lawsuits argue that a portion of the health care reform law requiring insurance companies to provide birth control to employees, including ones at religious institutions, is a serious affront to the religious institutions’ free exercise of religion rights.

    The Affordable Care Act, however, does not single out religious entities for unheard of treatment. Instead it is a law of general applicability, meaning it covers secular and religious institutions. There are all kinds of laws of general applicability, which may offend religious beliefs, but do not amount to a violation of the free exercise of religion.

    Nonetheless, the religious groups are apparently counting on judicial activism from some of 12 federal courts where their lawsuits have been lodged. In a press release about his school’s lawsuit, Jenkins stuck to the religious liberty canard, saying it “is about the freedom of religious organizations to live its mission ….”

    Irin Carmon, reporting for Salon on the religious groups’ legal actions, agrees with Angela Bonavoglia’s assertion that “this struggle is part of a larger crackdown by conservative hierarchy against liberal elements within it – chiefly, women, including nuns.”

    Others such as the public interest group Americans United for Separation of Church and State say the Catholic organizations are looking to the courts to help them revive faltering church doctrine.

  • April 30, 2012

    by Nicole Flatow

    Pop quiz: What is the central constitutional provision at issue in the Supreme Court’s review of the Affordable Care Act? If you said the Commerce Clause, you’re one step ahead of many of the tea partiers who protested outside the Supreme Court during oral arguments.

    Responding to questions from staff at the Constitutional Accountability Center, tea partiers bearing signs that read “Obamacare is unconstitutional” couldn’t name any part of the Constitution that they believe the law violates.

    “Well, I should know better. I should be able to answer that question and I can’t,” said one protester in a video produced by CAC, “Tea Party vs. The Constitution: ObamaCare Edition.”

    “If you read the Constitution, there’s nothing in there about health care,” said another.

    Others, when told that the Commerce Clause is what authorized Congress to pass the law, said the Commerce Clause was “added later” and was not part of the original Constitution.

    And when the interviewer tried to correct them by pointing out that the Commerce Clause is in Article 1, Section 8 of the original Constitution, one protester responded, “There’s no use in arguing about that because I don’t think either of us know for sure.”

    Watch the full video, including facts from experts who know what the Constitution actually says, below:

  • April 27, 2012
    Guest Post

    By Amanda Frost, Professor of Law, American University, Washington College of Law


    Opponents of the health care reform law argue that it takes away their liberty to make choices about health care.  In their brief to the Supreme Court, the twenty-six states challenging the constitutionality of the so-called individual mandate – the provision requiring those who can afford it to purchase health insurance – claim that it undermines “the very liberty that the Constitution was designed to protect.”  But in fact the legal questions before the Court have almost nothing to do with liberty when it comes to health care or health insurance, as the challengers’ own concessions make clear. 

    The states challenging the law do not deny that almost everyone needs health care at some point in their lives, and they even agree that the government can make people pay for health care through health insurance.  They take issue only as to when the government can compel that purchase, arguing that no one can be forced to buy insurance before they need to pay for health care.  The challengers also admit that the federal government could force everyone to pay higher taxes to cover the health care costs of those without insurance.  Nor do they deny that the federal government can require doctors to provide emergency care to those without health insurance, and then to allow those doctors to pass along the costs of that care to the rest of us through higher insurance premiums and taxes – indeed, that is how our system currently operates.  Finally, the challengers acknowledge that the states themselves could pass laws mandating that all their citizens purchase health insurance, as Massachusetts has done. 

    All that is really at stake, then, is whether the federal government has the constitutional authority to require individuals to purchase health insurance before they need to pay for their health care.   That “freedom” seems far from the heady liberty interest that opponents of the law claim this case is all about.