Health Care Reform

  • March 23, 2012
    Guest Post

    By Sara Rosenbaum, Harold and Jane Hirsh Professor, Health Law and Policy, George Washington University School of Public Health and Health Services. This post is part of an ACSblog online symposium around oral arguments on the Affordable Care Act. 


    When the curtain rises on the Affordable Care Act arguments before the United States Supreme Court, the nation will be fully engaged in what is perhaps the most important legal examination in generations regarding Congress’s constitutional powers to tackle issues of unsurpassed social and economic concern. Although Chief Justice Roberts has likened the role of the courts to that of an umpire in a baseball game, one can hope that the Justices will view the case for its broader significance for the health care system as a whole, as well as for the 32 million children and adults whose access to health insurance rests great measure in their hands. A declaration that the Act is unconstitutional will not merely nullify its provisions. Under federal budgeting principles, it will effectively roll the federal health reform spending baseline back to zero. The likelihood that Congress will, anytime soon, find the $1.5 trillion needed to make coverage affordable for nearly all Americans is slim to nil, something that the Act’s opponents frankly are banking on.

    It was perhaps inevitable that health care would be the issue to trigger a full-throated debate over the constitutional relationship between the federal government and American society. The signature domestic policy achievement of the Obama Administration, the Act stands as a testament to lawmakers’ ability to devise national solutions that simultaneously weave a wide array of existing laws – Medicaid for the poorest Americans, tax subsidies for low and moderate income individuals and families, and federal laws that regulate the behavior of insurers in the marketplace – into a complex legislative intervention of universal scope and impact.

  • March 22, 2012
    Guest Post

    By Timothy Jost, a law professor at Washington and Lee University. This post is part of an ACSblog online symposium around oral arguments on the Affordable Care Act.


    As we approach the oral arguments before the Supreme Court the week of March 26, most attention has focused on the constitutionality of the minimum coverage requirement. The question of whether or not Congress had the authority to impose this requirement under its delegated powers to regulate interstate commerce, levy taxes, and enact necessary and proper laws has been the focus of Affordable Care Act ligation since the day the law was enacted.

    Yet the Court will also hear arguments on an even more important issue — whether the ACA’s expansion of the Medicaid program is constitutional. The Medicaid program is jointly funded by the federal and state government and administered by the states subject to federal guidelines. It was begun in 1965 as a program to cover poor aged, blind, and disabled persons and families with dependent children. Medicaid has expanded over the years to cover more lower-income Americans. The ACA expands it once again, this time to cover adults with incomes at or below 133 percent of poverty beginning on January 1, 2014.

  • March 19, 2012

    by Jeremy Leaming

    If the Supreme Court’s conservative wing finds a way to ignore precedent and sticks together to strike the integral provision of the Obama administration’s landmark health care reform law, it will egregiously misread the Constitution, write Akhil Amar and Todd Brewster for Constitution Daily.

    The two provide reasons why striking the law's minimum coverage provision would represent such a flawed interpretation of the Constitution, which have been reiterated on this blog numerous times. And Amar has authored other articles and spoken often of the Patient Protection and Affordable Care Act and how its minimum coverage provision is constitutional. As noted by ACSblog last week, the majority of experts on the health care law believe the Supreme Court’s right-wing will not carry the day, and the law will be upheld.

    Amar and Brewster tackle two of the main arguments against the law’s minimum coverage provision, which staring in 2014 requires Americans who can afford to do so to purchase health care coverage or pay a penalty when filing their income tax returns. As Amar and Brewster note the opponents of the Affordable Care Act have attempted to make the argument that Congress with its passage of the law has taken major swipe at liberty – that is by allegedly forcing people into the health care insurance market.

    But Amar and Brewster, in accessible form, explain why the liberty argument fails – mainly because the Constitution provides Congress the powers to tax and spend, and regulate interstate commerce. The Supreme Court, moreover, has since the late 1930s, interpreted those powers to be broad ones.

  • March 16, 2012

    by Nicole Flatow

    The U.S. Supreme Court today said today it will not allow live, televised coverage of oral arguments on the constitutionality of the Affordable Care Act.

    The court will, however, post audio and transcripts on each of the three days of arguments, within two hours after the day's arguments are complete, The Associated Press reports. Typically, the Supreme Court posts audio files on Fridays.

    The announcement is likely to heighten the “mad dash” to get one of a few coveted spots inside the courtroom.

    "It's like the most important ticket of the decade," Ezekiel Emanuel, a former white house advisor, told The Wall Street Journal

  • March 16, 2012

    by Nicole Flatow

    Eighty-five percent of "a select group of academics, journalists and lawyers who regularly follow and/or comment on the Supreme Court" believe the U.S. Supreme Court will uphold the Affordable Care Act, according to a new American Bar Association poll.

    The widespread belief among legal experts that the health care reform law is constitutional is nothing new. As Reuters’ Joan Biskupic writes in a story tracing the history of the health care litigation, legal challenges to the law were initially regarded among many law professors as “implausible” and “frivolous.”

    She explains:

    As the suits proliferated, many professors, including conservatives, declared the challenges meritless. Charles Fried, a U.S. solicitor general under Reagan and now a Harvard law professor, told Greta Van Susteren of Fox News that he was so confident the individual mandate was valid that he would eat his hat - "bought in Australia ... made of kangaroo skin" - if the law was struck down.

    Public buy-in of the concept that the individual coverage provision is unconstitutional increased when the challengers recruited seasoned Supreme Court litigator Paul Clement. Clement shifted the argument away from directly relevant Commerce Clause precedent and toward the slippery-slope message that there are no discernible limits on the government’s commerce power, and that the law is “unprecedented.”

    The “It’s unprecedented!” rhetoric has been a rallying cry throughout history for those pushing back against progress, writes UCLA law professor Adam Winkler in a column for the San Jose Mercury News. But it hardly ever succeeds. He explains: