Health Care Reform

  • November 14, 2011

    by Jeremy Leaming

    As expected the Supreme Court announced this morning that it will review a legal challenge to President Obama’s landmark health care reform law, the Patient Protection and Affordable Care Act.

    The high court, as noted by SCOTUSblog and The New York Times, set aside five and half hours of oral argument in the case involving the U.S. Court of Appeals for the 11th Circuit opinion invalidating an integral provision of the health care reform law. In August, the 11th Circuit ruled 2-1 that the minimum coverage provision, which requires some individuals to carry health care insurance starting in 2014 or pay a penalty, is unconstitutional. In late September, the Department of Justice asked the Supreme Court to review the 11th Circuit opinion.

    White House Communications Director Dan Pfeiffer, said in a statement released earlier today, “We know the Affordable Care Act is constitutional and are confident the Supreme Court will agree.”

    Georgetown University law school professor Randy Barnett, an opponent of the Affordable Care Act, told The New York Times, “It is high time for the high court to strike down this unconstitutional, unworkable and unpopular law.”  

    ACS President Caroline Fredrickson said:

    The Supreme Court has agreed to provide a welcome resolution to the ongoing debate over the constitutionality of the Affordable Care Act. Long-standing precedent shows that Congress can regulate commerce in the national interest. If Congress can’t regulate an industry with such a huge impact on the U.S. economy, is there any limit on a judge’s ability to undermine federal stewardship of equally pressing issues?

    Time and again the high court has reaffirmed the established power of lawmakers to address national problems with national solutions. We eagerly await a clear and categorical statement by the Court affirming the Act’s constitutionality and ensuring that the Constitution is not a straightjacket on the legislative branch. Only a radical or cramped reading of Congress's constitutional power to regulate commerce could lead the Court to find the law unconstitutional.

    Just last week, the U.S. Court of Appeals for the District of Columbia Circuit ruled in favor of the law’s minimum coverage provision. Judge Laurence H. Silberman, a Reagan appointee, concluded, in part, “The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local – or seemingly passive – their individual origins.” In an article for Slate, Simon Lazarus, author of ACS Issues Briefs on the health care law, and public policy counsel for the National Senior Citizens Law Center, explains why Silberman’s opinion could carry considerable influence for the high court’s conservative justices.

  • October 6, 2011
    BookTalk
    The Myth of Choice
    Personal Responsibility in a World of Limits
    By: 
    Kent Greenfield

    By Kent Greenfield, a law professor and Law Fund Research Scholar at Boston College Law School.


    Americans love to be able to choose. The typical grocery store has more than 45,000 different items; the average American family has access to about 120 television channels. Glenn Beck opines, “for us to be able to choose, that’s a blessing.”

    An analogue to the fixation on choice is the focus on personal responsibility.  Because people make choices, they should be able to take personal responsibility for those they make. This sounds like something all of us could agree on, even in this especially tendentious moment in political history.

    My new book, The Myth of Choice: Personal Responsibility In a World of Limits, articulates some reasons to question this mantra of choice and personal responsibility.

    Choice is limited in all kinds of ways. Humans are limited by brain science, habit, authority, culture, and the so-called “free” market, which restricts as much as it empowers. We are easily overwhelmed by choice. Consider the grocery store and television statistics mentioned above -- studies show that people are happier when they choose among fewer, not more, items; television viewers may want lots of channels but actually watch only a handful. 

    Acknowledging the limits on choice is the first step toward recognizing the insidious nature of “personal responsibility” rhetoric. More and more, those on the right equate “personal responsibility” with choice. It is not about maturity or accountability but simply another way of saying that individuals get to make choices for themselves; they are masters of their fate.

    This brand of personal responsibility is used to oppose health care reform, support tort reform, and explain away problems of homelessness or delays in hurricane response. It uses a respect for individual choice to make the political point that government should be small, uninvolved, and deferential to individual decisions.

  • September 28, 2011

    by Jeremy Leaming

    The Obama administration is urging the U.S. Supreme Court to overturn a federal appeals court opinion that a major provision of the landmark Affordable Care Act is unconstitutional.

    In August, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit ruled 2-1 that the individual responsibility provision, or the individual mandate, which requires some people to carry a minimum amount of health care coverage starting in 2014 is unconstitutional.

    The administration decided to skip asking the entire Eleventh Circuit to reconsider the panel’s ruling. The panel’s opinion was swiftly panned by an array of constitutional law experts and legal pundits. The Atlantic’s Andrew Cohen blasted the Circuit’s majority opinion as sounding frequently like a “political manifesto.” He continued, “Had its language been made public just one day earlier, for example, you can bet your last pork-chop-on-a-stick that it would have been anthemized at the Republican debate in Iowa.”

    During an ACS press briefing on the Eleventh Circuit panel decision, ACS Board Chair and University of Chicago law school professor Geoffrey R. Stone said, “[I]f you gave this case, for example, to a group of law students who didn’t have any particular views on the merits but just as a legal exercise, and you gave them the existing precedents, I think they would have no difficulty upholding the legislation.” Audio of the briefing is available here.

    In announcing its action in defense of the ACA’s integral provision, the Department of Justice said:

    The Department has consistently and successfully defended this law in several court of appeals, and only the 11th Circuit Court of Appeals has ruled it unconstitutional. We believe the question is appropriate for review by the Supreme Court.

    Throughout history, there have been similar challenges to other landmark legislation such as the Social Security Act, the Civil Rights Act, and the Voting Rights Act, and all of those challenges failed.  We believe the challenges to Affordable Care Act — like the one in the 11th Circuit — will also ultimately fail and that the Supreme Court will uphold the law.

    Earlier in the summer, a panel of the U.S. Court of Appeals for the Sixth Circuit upheld the ACA’s mandate, holding, in part, “The minimum coverage provision regulates activity that is decidedly economic.”

  • September 16, 2011

    by Jeremy Leaming

    The Obama administration’s landmark health care reform law does not run afoul of the Constitution, which sets up a federal government with the ability to productively address a massive national concern, such as its health care system, ACS President Caroline Fredrickson writes in a column for The Tennessean.

    Fredrickson’s column appears beside a piece from Susan Lynn, a former state representative, who says the Constitution is strong, but that the document’s main concern is to constrain representatives from doing anything to promote and safeguard the Constitution’s genius.

    ACS’s Fredrickson says Tea Party rhetoric about the Constitution is seriously misguided. The founding document does include limits on the federal government, but it also provides for the congressional authority to act in a productive manner for the nation’s general welfare.

    The text of the Constitution tells us a lot. Fredrickson writes:

    Take a look at Article I, Section 8 of the Constitution. And then ask yourself is this a document that seriously limits our federal government? This section of the Constitution gives Congress the power to lay and collect taxes, to pay debts, and “provide for the common Defence and general Welfare of the United States.’’ It doesn’t end there, the Section grants Congress the power to regulate commerce, create uniform regulations on immigration on bankruptcies, to make money and establish its value, to “promote the Progress of Science and useful Arts,’’ to declare war, to raise and support armies, and to maintain a Navy.

  • September 9, 2011
    Guest Post

    By Steven D. Schwinn, Associate Professor of Law, The John Marshall Law School; and Co-Editor, Constitutional Law Prof Blog


    With all the talk these days about state sovereignty, “states’ rights,” and the importance of protecting the traditional roles of the states, you might think that states reign supreme in our federal system. You might think that the mighty states are designed with a singular purpose to protect us from a dangerously encroaching federal government. (You might even forget that it was We the People, and not the states, who formed the federal government in the first place.) And you might think that states have a sovereign right, even a duty, to file suit in federal court to head off and to nullify an out-of-control federal government on our behalf. 

    With all the talk these days, you might think these things. But then you’d be wrong.

    We got a healthy reminder of that in the form of a terse and pointed opinion this week by Judge Motz for a unanimous three-judge panel of the Fourth Circuit. The court rejected the Commonwealth of Virginia’s effort to sue in federal court to overturn the individual health insurance mandate in the Affordable Care Act. In particular, it rejected the Commonwealth’s transparent attempt to concoct a federal claim where there was none.  In so doing, it set right the relationship between the states and the federal government, their proper roles in relation to their citizens, and the job of the courts in preserving our federal system.  In short, it put the Commonwealth back in its place.

    The case, Virginia v. Sebelius, was based on the Virginia Health Care Freedom Act, which says that “[n]o resident of this Commonwealth . . . shall be required to obtain or maintain a policy of individual insurance coverage.” The Commonwealth claimed that it enacted the VHCFA in order to protect its citizens from the overreaching individual health insurance mandate in the ACA.  In truth, the Act was only a naked effort to manufacture standing for the Commonwealth (and really just the state attorney general) to sue the federal government in federal court -- the AG’s way to air and to legitimize his political objections to the individual mandate under the guise of a constitutional complaint. Thus the Commonwealth argued that the ACA’s individual mandate ran right up against its own VHCFA, creating a concrete and particularized injury that would satisfy the standing requirements of Article III.