Health Care Reform

  • March 30, 2012
    Guest Post

    By Rebecca L. Brown, Newton Professor of Constitutional Law at the USC Gould School of Law


    During Tuesday’s argument, Justice Scalia asked whether the individual mandate, even if “necessary,” was also “proper.” He may well have had good reasons to focus on this language, and the Necessary and Proper Clause, to which it refers.

    In 2005, Justice Scalia wrote separately in a Commerce Clause case to emphasize that conduct can be regulated if it is “an essential part of a larger regulation of economic activity….”  He added, “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.” The question in the case, Gonzales v. Raich, was whether the federal drug laws could reach the cultivation and possession of marijuana for personal use as authorized by state law. Justice Scalia wrote that, when the federal government puts in place a comprehensive regulatory scheme that falls within the power to regulate interstate commerce (such as the interstate drug laws) then it may also impose additional requirements, even over matters that it could not regulate in isolation (such as wholly intrastate, non-commercial activity, like the growing of marijuana)—if those additional requirements are “necessary and proper” to effectuate the larger federal scheme.   

    Many of us read that plausible analysis to suggest an analogous approach to the Affordable Care Act. Congress has unquestioned authority to regulate the interstate and commercial matters of health care and insurance. In turn, as Justice Scalia made clear in Raich, additional rules that are necessary and proper to the functioning of the overall system of regulating those markets can be constitutionally adopted by Congress-- even if those additional rules might be of questionable validity if passed in isolation. 

    There is no dispute that the individual mandate is necessary, even essential, to effectuate the congressional policy of requiring insurers to offer coverage without regard to pre-existing conditions. Without the individual mandate, people would be free to wait to buy insurance until they needed expensive medical care, which would undercut the role of insurance as a pooling of risk. Assuming, then, that Justice Scalia would maintain consistency with his prior views, many thought that he could be counted on as a vote to uphold the individual mandate.

    But, apparently realizing the import of his prior opinion, Justice Scalia on Tuesday laid the groundwork for backing away from it. While conceding that the individual mandate is “necessary” to the federal scheme, he questioned whether it is also “proper.” Why might it not be proper? In an exercise of utterly circular reasoning, Justice Scalia suggested that it might not be “proper” because it goes beyond the limits of Congress’s limited powers.   

  • March 28, 2012
    Guest Post

    By Sergio Eduardo Muñoz, Senior Policy Analyst, Health Policy Project, Office of Research, Advocacy, and Legislation, National Council of La Raza. This post is part of an ACSblog online symposium on oral argument in HHS v. Florida.


    Yesterday’s Day 2 Affordable Care Act (ACA) arguments at the Supreme Court involved the centerpiece of both health care reform and its legal challenges by examining whether the individual responsibility requirement to carry health insurance exceeds Congress’s powers under the Constitution. And unfortunately, it didn’t take long for it to become painfully clear that this question of enormous consequence may very well split down ideological lines. During his confirmation hearings, Chief Justice Roberts used the analogy that a federal judge is like an umpire, objectively calling balls and strikes under commonly accepted rules. If anything good came out of Tuesday’s acrimonious argument, maybe we can finally put that misleading visual to rest. The Justices’ sharp comments on the constitutionality of the responsibility requirement made clear that not only are the Court’s ideological wings calling these pitches differently, it’s not even clear they’re playing the same game.

    Before describing today’s fireworks, however, some cold facts underlying today’s arguments and what the responsibility requirement does and does not do. If the responsibility requirement was in effect today, also referred to as the “individual mandate,” only 7% of the country under-65 would have to newly buy insurance or pay the tax penalty for non-compliance. Of those, over half would receive generous subsidies to assist in the purchase of insurance in newly-regulated markets. The vast majority of Americans would not have to decide how to satisfy the responsibility requirement because they already have insurance or would be exempt from purchase because of the economic strain. Take the Hispanic community, for example. Considering uninsured Latino children in comparison to other groups are disproportionately underenrolled in Medicaid and CHIP, despite the fact that Hispanics are about two times more likely than Whites to qualify for public health insurance, the odds are slim that this community would have to choose between new insurance and the assessment. This truth, unfortunately, has not been successfully communicated.

  • March 27, 2012
    Guest Post

    By Adam Winkler, professor of law, UCLA School of Law. This post is part of an ACSblog online symposium on oral argument in HHS v. Florida.


    The two days of oral argument into President Obama's health care reform law have been notable for their lack of surprises.

    On the first day, the Court considered whether the Anti-Injunction Act barred the lawsuits challenging the individual mandate. Although this was always considered the sleeper issue of the case, there are few stronger trends in the Supreme Court these days than judicial assertiveness. A Court that could decide a disputed presidential election in Bush v. Gore; unleash Citizens United; and repeatedly wade into presidential war powers should have little hesitancy reaching out to decide the fate of the Affordable Care Act. So when the Justices breezily ignored the plain language of the AIA, it was predictable. The Court wants to decide all of the major issues in American politics, including this.

    On day two, the Court looked at the individual mandate. One thing that always seemed beyond the pale to me was the idea that, when it came to the mandate, the votes of Justice Scalia and Chief Justice Roberts were in play. Just because Scalia voted to uphold the federal drug laws in Gonzalez v. Raich should never have fooled anyone into thinking he'd vote to uphold the mandate, and his aggressive questioning of the government on the mandate indicated he's likely to vote to strike it down. The same can be said for Roberts, who for seven years now has been confounding the expectations of those who believed he'd really push for unanimous, narrow rulings that avoided constitutional questions, as he promised in his confirmation hearings. His voting record is strongly conservative and his desire to protect the institutional legitimacy of the Court is remarkable mainly for its lack of manifestation.

  • March 27, 2012

    by Jeremy Leaming

    The spin is in on today’s health care law oral arguments – Paul Clement, the attorney for the state’s challenging the law’s minimum coverage provision, is awesome, and the provision is in trouble.

    But, as noted yesterday by constitutional law professor Garrett Epps you’re on wobbly ground when predicting Supreme Court opinions based on oral argument theatrics. Sure, Clement is an outstanding high court litigator -- we’ll take it from SCOTUSblog founder Tom Goldstein who lavished praise on Clement at an oral argument preview last month, calling him one of the greatest attorneys of his generation.

    What we can tell from today’s oral argument is that the Solicitor General Donald Verrilli, Jr., largely focused on Congress’s constitutional authority to regulate interstate commerce. The government has also argued that Congress’s constitutional power to tax and spend also supports the minimum coverage provision. Most of the justices, however, we're glued to the commerce clause question.

    SCOTUSblog’s Lyle Denniston, a veteran Supreme Court correspondent, wrote of today’s oral argument that Justice Anthony Kennedy, “after first displaying a very deep skepticism,” provided toward the end of oral argument “the impression that he might yet be the mandate’s savior."

    Additionally, the high court’s four moderate to left-of-center justices appear inclined to vote in favor of the ACA provision, which requires many to start carrying a minimum amount of health care insurance in 2014.

  • March 26, 2012

    The Following is an excerpt from Harvard Law Professor Charles Fried’s testimony during a Senate Judiciary Committee hearing on the constitutionality of the Affordable Care Act.* Prof. Fried was former solicitor general under President Ronald Reagan. This post is part of an ACSblog online symposium around oral arguments on the Affordable Care Act.


    I come here today not as a partisan supporter of the Obama Administration’s health care legislation. I am not an expert in health care economics or policy, and I am sure there are many arguments for and against the wisdom and feasibility of this legislation. I do not enter into that debate. I am an expert on constitutional law, which I have been teaching and practicing for many years and on which I have written books and articles, most to the point my 2004 book, SAYING WHAT THE LAW IS: THE CONSTITUTION IN THE SUPREME COURT. I also am not one who believes that Article 1, Section 8 of the Constitution is in effect a grant of power to Congress to regulate anything it wishes in any way it pleases. There are limits to what may plausibly be called commerce. I agree entirely with the decision in United States v. Morrison that section 13981 of the Violence Against Women Act cannot be brought within Congress’s power to regulate commerce. Indeed I sat at counsel table with Michael Rosman when he successfully argued that case. Though gender-motivated violence is despicable, cowardly, and in every state in the union criminal, a man beating up his wife or girlfriend is not commerce. Neither is carrying a gun in or near a school, as the Court correctly held in United States v. Lopez. The arguments to the contrary required torturing not only constitutional law but the English language. But the business of insurance is commerce. That’s what the Supreme Court decided in 1944 in United States v. South-Eastern Underwriters Ass’n and the law has not departed from that conclusion for a moment since then. One need only think of the massive regulation of insurance that is represented by ERISA to see how deep and unquestioned is that conclusion.

    If insurance is commerce, then of course the business of health insurance is commerce. It insures an activity that represents nearly 18% of the United States economy. (In this connection recall Perez v. United States, which held that a very local loan sharking operation was within Congress’s power to regulate commerce.) And if health insurance is commerce, then the health care mandate is a regulation of commerce, explicitly authorized by Article I, Section 8 of the Constitution.