Health Care Reform

  • April 16, 2012

    by Jeremy Leaming

    Plenty of legal scholars and others have been unmoved by the primary argument leveled against the Affordable Care Act, the broccoli argument, and justifiably so.

    But after oral argument in HHS v. Florida, where Supreme Court Justices Antonin Scalia and Samuel Alito appeared to embrace the simplicity of the argument – if Congress can make you purchase health care insurance, there will be no limiting principle on congressional power and it will soon mandate us all to buy broccoli – expressions of astonishment and concern abound.

    In a piece for The Atlantic, Harvard Law School Professor Einer Elhauge details why the broccoli argument is not only wobbly, but dangerously flawed.

    Scalia cited the the broccoli concern during oral argument when demanding the government’s lawyer to articulate a limiting principle on Congress’s power to regulate commerce among the states.  

    Elhauge notes first that the limiting principle has already been articulated the Supreme Court as follows: “a federal law must (1) involve economic regulation (2) that addresses a national problem (3) that affects interstate commerce.”  

    Walter Dellinger, former Solicitor General, articulated a limiting principle slightly differently during an ACS briefing on oral argument, saying “the power to regulate commerce among the states extends to regulation of those purchases, which are inevitable, of goods and services, which will be provided to the individual even if they have made no arrangements to pay for them, where the cost will be shifted to others in a way that undermines an undoubtedly constitutional regulatory scheme.”

    It’s the limiting principle already adopted by the Supreme Court through other cases that the challenges are itching to change, Elhauge says. (In an ACS Issue Brief, Simon Lazarus explains the radical nature of the challengers’ agenda to topple health care reform.)

    “They want the justices to read into the Commerce Clause a new limiting principle, one that bars laws mandating the purchase of any product,” Elhauge writes. “But however attractive that kind of new limiting principle might seem, it cannot be inserted into the Constitution by judicial fiat when it lacks support in constitutional text, history, or precedent.”

  • April 11, 2012

    by Nicole Flatow

    When Fifth Circuit Judge Jerry Smith asked the Department of Justice for a three-page single-spaced memo defending its support for the long-established principle of judicial review, Attorney General Eric Holder did what was asked and responded.

    He refrained from pointing out, as Jeffrey Toobin did, that Smith’s behavior during the hearing on a challenge to the Affordable Care Act was a “disgrace,” or as Orin Kerr did, that it was “highly inappropriate” for Smith to ask the DOJ to defend political comments by President Obama about the Supreme Court’s review of the health care law totally outside of the scope of the record in the case.

    But in his dreams [and in The American Prospect], constitutional law professor Garrett Epps envisions a different kind of letter Holder might have sent, in which he refuses to respond on the basis that the Fifth Circuit has absolutely no jurisdiction in this case over the President of the United States:

    Dear Judge Smith,

    … This letter is a truthful response to this court's order and the issues of jurisdiction and judicial ethics it raised. Because it is truthful, it will never be filed with any court. Nonetheless, I will take this imaginary opportunity to state that the proper response to your order is a regretful refusal to comply on the grounds that it was made in excess of your jurisdiction, that it raises serious issues about your fitness to serve the United States in a position of honor and trust, and that it tends to bring discredit on the federal judiciary.

    Epps goes on to explain that the very same decision that established judicial review, Marbury v. Madison, also established that “federal courts are courts of limited jurisdiction” and any attempt to go outside that jurisdiction deprives them of their power.

    While presidents are political actors who have criticized the courts since Thomas Jefferson, judges are expected not to act as naked partisans, he explains.

    He continues:

  • April 2, 2012

    by Jeremy Leaming

    A Supreme Court opinion striking health care reform would be indefensible and widely perceived as political said former Solicitor General Walter Dellinger at a recent ACS briefing on last week’s oral arguments in HHS v. Florida.

    Dellinger’s sentiment is echoed in an editorial from The New York Times, which said the oral arguments in the health care reform case should put to rest the widely held belief that “legal conservatives are dedicated to judicial restraint ….” For the Roberts Court, The Times continued, has proven to be a judicial entity ready to “replace law made by Congress with law made by justices.”

    The Times’ editorial continued, “Established precedents support broad authority for Congress to regulate national commerce, and the health care market is unquestionably national in scope. Yet to Justice Kennedy the mandate requiring most Americans to obtain health insurance represents ‘a step beyond what our cases have allowed, the affirmative duty to act, to go into commerce.’ To Justice Breyer, it’s clear that ‘if there are substantial effects on interstate commerce, Congress can act.’”

    President Obama fielding questions from reporters following a news conference with Canadian Prime Minister Stephen Harper and Mexican President Felipe Calderon, issued concern about a high court opinion invalidating the Affordable Care Act, Politico reported.

    “I just remind conservative commentators that for years we’ve heard that the biggest problem is judicial activism or a lack of judicial restraint,” Obama said. “That a group of people would somehow overturn a duly constituted and passed law. Well, this a good example. And I’m pretty confident that this court will recognize that and not take that step.”

    The president said his confidence was based on “precedent out there. That’s not just my opinion, by the way. That’s the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices who said this wasn’t even a close call.”

  • March 30, 2012

    by Jeremy Leaming

    Before this week’s marathon oral arguments in the case challenging health care reform, many legal scholars, had strongly argued that the challengers’ arguments did not have a serious chance of surviving Supreme Court scrutiny.

    Primarily the reasoning was based on high court precedent in favor of a broad reading of Congress’ power to regulate commerce and to tax and spend for the general welfare.

    But those perceptions have been rocked following three lengthy days of oral argument, in which Justices Antonin Scalia and Samuel Alito appeared to have bought the challengers’ arguments against the minimum coverage provision, and, at times, revealed utter callousness toward national lawmakers’ attempt to reform a terribly inefficient and exclusive health care system that has left tens of millions uninsured.

    Moreover as The New York Times columnist Paul Krugman noted, several of the justices appeared utterly or willfully ignorant of how “insurance works.” Krugman said Scalia’s comparison of purchasing health care insurance to buying broccoli “horrified health care experts all across America because health insurance is nothing like broccoli.”

    “Why? When people choose not to buy broccoli, they don’t make broccoli unavailable to those who want it. But when people don’t buy health insurance until they get sick – which what happens in the absence of a mandate – the resulting worsening of the risk pool makes insurance more expensive, and often unaffordable, for those  who remain. As a result, unregulated health insurance basically doesn’t work, and never has,” Krugman wrote.

    Walter Dellinger, former Solicitor General, at an ACS briefing on the oral arguments in HHS v. Florida, said it appeared, based mostly on their questions that three justices look ready to strike the minimum coverage provisions. Justice Samuel Alito’s questions were almost as hostile as Scalia’s and most, including Dellinger, believe Justice Clarence Thomas will vote to invalidate the law’s integral provision.

    But Dellinger (pictured) is still holding out hope that two more justices will not join those three in killing health care reform.

    “If there were five,” he said, “I would be shocked, because I think it would take us back to the jurisprudence of the 1920s. I think it would be the most stunning and indefensible judicial decision in half a century. It would be paired with Bush v. Gore in the law books forever.”

  • March 30, 2012

    by John Schachter

    Who would have thought a 220-year-old law would be relevant in the health care reform debate that dominated the Supreme Court this week? Yet there it is – the Militia Act of 1792 – standing firmly as an answer to an oft-asked question in this debate. Is there an example of anything that Congress has mandated that people buy?

    Let’s put aside for the moment that the requirement that we pay our taxes “mandates” that we all “buy” Social Security and Medicare, highways, medical and scientific research, tanks and weapons, and anything else the government pays for through its revenues. How about the narrower question of Congress specifically mandating that citizens actually purchase a good or service?

    When ACS President Caroline Fredrickson appeared on Fox News’ “The O’Reilly Factor” on March 27, the show’s eponymous host appeared genuinely miffed when Caroline mentioned the Militia Act. “What act was that?” he asked. O’Reilly had insisted on hearing an example of Congress requiring citizens to purchase something – or as he so politely put it, “[Name] one thing that the federal government compels you to buy, one thing. One thing.”

    And when given the oldest and most relevant answer, he balked. It’s pretty clear he didn’t expect there to be an answer. While it’s often difficult to divine what our Founders may have intended with various constitutional prerogatives, in this case we have actual hard evidence.

    The following day (presumably after firing the intern who failed to brief him properly), O’Reilly had to justify his erroneous skepticism. Easy for him – he changed the question.