Health Care Reform

  • August 22, 2011

    by Nicole Flatow

    Although the recent appeals court decision striking down the individual coverage provision of the Affordable Care Act was a blow to health insurance reform, it’s important to recognize the victory in this case: that some 950 pages of the law were upheld, Washington & Lee law professor Timothy Jost said during an American Constitution Society phone briefing about Affordable Care Act litigation.

    “I think that the bottom line news from this case is that the federal government and the states should proceed with implementing the Affordable Care Act,” Jost said, noting that this case was an appeal from a lower court decision striking down the entire law, and that the plaintiffs had specifically challenged a Medicaid expansion provision that the U.S. Court of Appeals for the Eleventh Circuit upheld.

    “It’s clear after this decision that there’s no decision out there holding the entire law to be unconstitutional and I’m not even sure that the Supreme Court is going to take a close look at that,” he said. “I rather doubt that they will.”

    The appeals court decision does all but assure that the Supreme Court will consider the constitutionality of the law’s so-called individual coverage provision, which requires that most individuals buy health insurance or pay a penalty. (The court came to the opposite conclusion of the U.S. Court of Appeals for the Sixth Circuit, creating a split between two federal appeals courts.)

    Both Jost and University of Chicago law professor Geoffrey R. Stone, who also spoke during the briefing, predicted that the Supreme Court would uphold the decision, possibly with a majority of as many as eight justices. Based on precedent on the Constitution’s commerce clause, Stone reasoned, deciding this case is easy.

  • August 16, 2011

    by Nicole Flatow

    Friday’s appeals court decision striking down the individual coverage provision of the health care reform law did not hinge on any “constitutional bedrock doctrines” so much as on Congress’s alleged imprecise use of terminology, University of Southern California law professor Edward Kleinbard writes in The Huffington Post.

    Had Congress framed the law as a “tax,” rather than as a “penalty” on those with certain incomes who do not buy health insurance, “the result apparently would have within its power,” even though the penalty envisioned by Congress is collected through the tax structure, Kleinbard writes.

    “We now must hope that the Supreme Court will see past the formalism of this analysis and conclude that the legislation in substance is completely constitutional,” he adds.

    Underlying the court's reasoning is the belief, also reflected in the recent debt-ceiling negotiations, that “government activity is largely hostile to prosperity and the pursuit of happiness, and therefore the less of it, the better,” Kleinbard writes.

    Kleinbard goes on to explain why this view is wrong, in his full column here. And The Atlantic’s Andrew Cohen adds to the discussion, articulating why this view has no place in a court decision.

  • August 12, 2011

    by Nicole Flatow

    The U.S. Court of Appeals for the Eleventh Circuit today struck down the health care reform law’s individual coverage provision.

    The 2-1 decision partially upheld a lower court ruling by U.S. District Court Judge Roger Vinson, but Chief Judge Joel Dubina and Judge Frank Hull did not agree with Vinson that the entire law should be invalidated, Politico reports.

    Judges Dubina and Hull, writing for the majority, reasoned that if this provision could be upheld, there would be no clear way to set limits on Congress’s power.

    “We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers,” they wrote.

    In his dissent, Judge Stanley Marcus countered that the majority ignored the “undeniable fact that Congress’ commerce power has grown exponentially over the past two centuries, and is now generally accepted as having afforded Congress the authority to create rules regulating large areas of our national economy.”

    In June, the U.S. Court of Appeals for the Sixth Circuit came to the opposite conclusion and upheld the entire law as constitutional. Judge Jeffrey Sutton, a George W. Bush appointee and “Federalist Society favorite,” offered “potent support” when he issued a concurring opinion upholding the constitutionality of the law, the National Senior Citizens Law Center’s Simon Lazarus wrote for ACSblog.

    American Constitution Society Executive Director Caroline Fredrickson blasted the majority's conclusion as inconsistent with the widely held understanding of the Constitution’s commerce clause.

  • June 23, 2011

    Despite claims about unprecedented intrusion on liberty, the litigation over the landmark health care reform law is really an “effort to change existing doctrine to have courts create and impose a new limitation on Congress’s ability to deal with major national economic problems,” said Indiana University law professor Dawn Johnsen during a plenary panel discussion at the ACS 10th Anniversary National Convention. She added that ultimately this effort to fundamentally change law surrounding commerce clause authority should remind us of the importance of judicial nominations.

    Since 1937, Johnsen, a member of the ACS Board, noted that the Supreme Court has almost always upheld Congress’s authority to enact laws regulating economic concerns. There have been only a few cases in recent time where the high court has invalidated laws as falling beyond Congress’s power to regulate commerce, she said. But the narrow majority in those cases expressed concern that the acts in question were too far afield from regulation of economic concerns. The Affordable Care Act (ACA), however, certainly deals with regulation of a major part of our economy, Johnsen concluded.  

    Randy E. Barnett, professor of law at Georgetown University Law Center, and a critic of the minimum coverage provision, told the audience, to laughter and applause, that the bill it got was one it really didn’t want and was actually a payoff to the insurance companies so they would not oppose the bill. Under current court doctrine, Barnett said, extending Medicare to everyone or having a single-payer plan would be constitutional.

    Walther E. Dellinger III, partner at O’Melveny & Myers, and a former Acting U.S. Solicitor General, said without the minimum coverage provision, the ACA could not guarantee that health insurance coverage would be available to those with pre-existing conditions. He maintained that even if the minimum coverage provision were not supported by Congress’s powers to regulate commerce or to tax and spend, it is within Congress’s authority to create laws necessary and proper in carrying out its constitutional powers.

    Dellinger also took on the Right’s frequent argument that the ACA represents an unprecedented government intrusion into health care.

    “We hear the talks about government intrusions into health care – that this represents an extraordinary step about liberty,” he said. “And I just cannot, any longer, refrain from making the observation that it is really ironic and disturbing to hear that liberty lecture come from people talking about government takeover of medical care, many of whom would legislate the imposition upon women of unnecessary waiting periods [for abortions], government scripted lectures, compulsory sonogram viewings, and government mandated unsafe medical procedures.”

    Video of the full panel discussion is available here or by clicking on image below.

  • June 8, 2011
    Guest Post

    By Robert Schapiro, a Professor of Law and Associate Vice Provost for Academic Affairs at Emory University.


    Though tough questions abounded, supporters of the constitutionality of the health care reform statute received some encouraging signs at the oral argument this morning in the United States Court of Appeals for the Eleventh Circuit. The panel, consisting of Chief Judge Joel Dubina and Judges Frank Hull and Stanley Marcus, grilled both sides, but a majority seemed to understand the law more within the framework suggested by acting Solicitor General Neal Katyal, who defended the law’s constitutionality.

    Most of the argument focused on the “individual mandate,” a provision of the statute that will eventually require most people either to purchase health insurance or to pay a fee. In this case, 26 states, along with some private parties, assert that the mandate exceeds the powers of the national government. Supporters of the law argue that the individual mandate lies well within Congress’s constitutional authority to regulate interstate commerce. In January of this year, U.S. District Judge Roger Vinson agreed with the states and struck down the law in its entirety.

    One central issue in the case is whether the individual mandate constitutes a regulation of economic activity. In United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court struck down congressional statutes because they sought to regulate noneconomic conduct -- guns in schools and violence against women. Relying on Lopez and Morrison, opponents of the health care law assert that the failure to purchase insurance is neither economic nor an activity and thus lies beyond congressional power.

    Judge Hull appeared unpersuaded by this argument. She stated that she found the proposed distinction between activity and inactivity to be unhelpful. Throughout the argument, she also referred to the choice of whether to buy insurance as an economic decision. For good measure, she suggested that Lopez and Morrison had limited relevance to the case at hand.

    If the individual mandate is considered to be a regulation of economic activity — the decision about whether to buy insurance -- and if Lopez and Morrison are distinguishable, Judge Hull should be voting to uphold the individual mandate.

    Judge Marcus seemed intrigued by the hypothetical alternative of a federal statute that applied at the time of the provision of medical service, requiring everyone receiving care either to have insurance or to pay a penalty.