Healthcare Reform

  • November 5, 2017
    Guest Post

    by Simon Lazarus

    *Simon Lazarus is a lawyer and writer who has frequently contributed to this blog on legal issues related to the health reform wars and other matters. 

    In endlessly excoriating President Barack Obama’s administration of the Affordable Care Act, ACA opponents featured a once obscure constitutional provision, the Article II clause that directs the President to “take care that the laws be faithfully executed.” Legally, the charge that Obama had breached his “take care” obligation was patently meritless, and Obama’s assailants never took their bombast seriously enough to substantiate it, let alone fit it into a claim to take to court. 

    Indeed, no court has ever invoked the Take Care Clause as a basis for constraining alleged executive overreach. There are obvious reasons for this. If there were an articulated standard for defining a violation of the clause, it could presumably be comparatively complicated to meet it. A jumping off analogy might be former Justice William Rehnquist’s dictum, in the 1985 case Heckler v. Chaney, suggesting that courts must defer to executive branch decisions not to initiate enforcement proceedings, unless an “agency has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.” In that vein, to make out a violation of the president’s take care responsibility, one would likely have to demonstrate a pattern of actions that undermine a law, or laws, and – because of the clause’s focus on good faith (“faithful execution”) – actions that hamstring the law intentionally. While bad intentions can be, and often are, proven by objective, circumstantial evidence, executive officials bent on nullifying a law have presumably had sufficient savvy to cloak wrongful intent behind well-orchestrated procedures that would deter a judge from finding or a litigant from hanging her case on an allegation that they did in the law on purpose.

    Until now.

  • February 2, 2011
    The federal judge's 78-page opinion invalidating the landmark Affordable Care Act is riddled with errors, legally wobbly and ideologically driven, write Center for American Progress's (CAP) Neera Tanden, Ian Millhiser and Tony Carrk. The three outline the opinion's litany of problems in an "Interactive Assessment" here.

    The group's assessment shows that Judge Roger Vinson's decision "effectively writes an entire provision of the Constitution out of the document ..., butchers history," ignores Supreme Court precedent, "and relies on a constitutional theory that George Washington would find shocking."

    Tanden, Millhiser and Carrk add:

    We also explain that one section of Vinson's opinion was lifted from a brief filed by an organization that has been labeled a hate group. And when Vinson somehow concludes that the Boston Tea Party renders the Affordable Care Act unconstitutional, we take apart that argument, too.

    Opponents of the landmark health care reform law have peddled the canard that the law's individual coverage provision, which requires some persons to maintain health care insurance starting in 2014, exceeds Congress's constitutional authority to "regulate commerce among the several states." Judge Vinson offers several takes on the extent of the Commerce Clause that essentially ape those pushed by the law's opponents.

    On page 28 of the opinion, for example, Judge Vinson of the Federal District Court in Pensacola, Fla., writes that "for the first century of our history the Clause was seldom invoked by Congress (if at all), and then only negatively to prevent the interference with commerce by individual states." That quote is highlighted in yellow by CAP's interactive assessment. Click on the highlight and the authors expose Vinson's error. "Vinson is wrong: The First Congress enacted a law that viewed the Commerce Clause expansively," noting that it "used its commerce power to enact ‘An Act to Regulate trade and Intercourse with the Indian Tribes,' a law that prohibited ‘any crime upon, or trespass against, the person or property of any peaceable and friendly Indian or Indians.'

    Also on page 28, the judge claims that "it was not until 1887, one hundred years after ratification, that Congress first exercised its power to affirmatively and positively regulate commerce among the states." Wrong, again. As CAP's research notes, "The first Congress passed, and President Washington signed, ‘An act for registering and clearing vessels, regulating the coasting trade, and for other purposes,' which required the owners of U.S. ships to register their vessels and even contained special rules governing ships traveling from Baltimore to Philadelphia."

    There's plenty more. As the authors note once you take a "deep dive" into their assessment you'll "discover Vinson's opinion is such an outlier that it will not be taken seriously by higher courts." The authors also encourage you to send them errors you may happen upon.

    For further examination of Judge Vinson's opinion, check out ACSblog guest posts from Simon Lazarus, author of an ACS Issue Brief on the constitutionality of the law's individual coverage provision, and UCLA law school professor Adam Winkler, available here and here.

    In January more than 100 law professors signed a statement reaffirming the constitutionality of the Affordable Care Act. "Congress's power to regulate the national healthcare market is unambiguous," the professor's statement reads. "Nothing in the Constitution's text, history, or structure suggests that, in exercising its enumerated powers, Congress is barred from imposing reasonable duties on citizens on the theory that such requirements amount to regulating ‘inactivity.'"

  • January 14, 2010
    Conservative pundit George Will argues in a Washington Post column that wobbly conservatives deplore so-called judicial activism, but true conservatives would support a court decision striking down a health care law requiring individuals to purchase coverage.

    In his column for The Post, Will maintains that the supporters of the heath care mandate are inadequately defending the proposed legislation on constitutional grounds. He asserts that if Congress and the executive branch can require people to buy health care coverage, they could also require people to get in shape. Will writes, "Why not the Anti-Couch Potato Act to Make Calisthenics Mandatory and to Impose a $50 Excise tax on Cheeseburgers Because Unhealthy Lifestyles Affect Interstate Commerce?"

    Although Will cites one pundit, the National Journal's Stuart Taylor, as arguing that the Supreme Court would likely uphold the constitutionality of such a mandate, he could have pointed to numerous others, such as constitutional law experts, Erwin Chemerinsky or Robert A. Schapiro

    Or he could have cited a recent Issue Brief released by ACS, in which Simon Lazarus, public policy counsel for the National Senior Citizens Law Center (NSCLC), refutes the arguments that Congress has given short-shrift to the Constitution in fashioning its legislation.

    As Lazarus writes:

    Many independent experts, studies, and analyses concur in Congress' judgment that health reform with universal coverage must include a responsibility requirement; without it, not enough individuals will participate in a voluntary system, adverse selection will continue, the government will continue to overpay for care for the uninsured, and overall health reform will be unsustainable.

    He concludes that the individual mandate "is lawful and clearly so - pursuant either to Congress' authority to ‘regulate commerce among the several states,' or to its authority to ‘lay and collect taxes to provide for the General Welfare.'"

    Lazarus' Issue Brief, "Mandatory Health Insurance: Is it Constitutional?" is available here.

  • November 3, 2009
    "A little-noticed" measure in the healthcare reform bill would require insurers to consider covering Christian Science prayer treatment as medical expenses, the Los Angeles Times reports. The newspaper says the provision has the backing of Sens. Orrin Hatch and John Kerry, as well as lobbyists for the Christian Science Church. Phil Davis, a church official, tells the Times, "We are making the case for this, believing there is a connection between healthcare and spirituality. We think this is an important aspect of the solution, when you are talking about not only keeping the cost down, but finding effective healthcare."

    But the newspaper notes supporters of the First Amendment principle of the separation of church and state are concerned that the provision would amount to federal funding of religious services.

    Erwin Chemerinsky, a constitutional law expert and dean of the UC Irvine School of Law, told the newspaper, "I think when Congress mandates that health companies provide coverage for prayer, it has the effect of the government advancing religion."

    Sen. Hatch said he was pushing the provision because "everyone, regardless of religious affiliation, should have access to healthcare."

    A pediatrician and medical ethicist at the University of Wisconsin said the provision, however, should be dumped because it would pay for services that are not medical.

  • November 2, 2009
    Some opponents of health care reform, especially the mandate that all citizens buy health care insurance, are inaccurately claiming Congress is on the verge subverting the rights of states, says constitutional scholar and law professor Robert A. Schapiro.

    In a column for The Atlanta Journal-Constitution, Schapiro, professor of law at Emory University School of Law, explains that supporters of the health care provisions are actually the "true standard bearers of federalism," and the plans being considered in Congress "build on the interaction of state and federal power that is central to federalism."

    Schapiro continues:

    Constitutional doctrine clearly gives Congress the authority to decide whether to enact the mandate. Congress has the power to regulate interstate commerce, which includes buying and selling insurance. In the Raich [Gonzales v. Raich] case in 2005, the U.S. Supreme Court clarified the scope of the commerce power and reaffirmed the core principle that dissident states cannot thwart national policy.

    Raich concerned a California program that legalized the use of marijuana for medical purposes. The California plan clashed with a federal law that criminalized private possession. In Raich, the court upheld the congressional ban by a vote of 6-3.

    Even Justice Antonin Scalia, no fan of expansive claims of federal power, voted to affirm Congress' authority. Justice Scalia explained, ‘Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.'

    See Schapiro's entire article here. Also for additional analysis of the constitutionality of health care reform see Professor Erwin Chemerinsky's recent columns here and here.