minimum coverage provision

  • June 29, 2012

    by Jeremy Leaming

    Reading from the bench during the announcement of the Supreme Court’s decision on the Obama administration’s landmark health care reform law, Justice Ruth Bader Ginsburg declared, “In the end, the Affordable Care Act survives largely unscathed.”

    Yes, the Obama administration’s signature legislative achievement and the strongest effort in many decades to repair the nation’s tattered social safety did survive Supreme Court scrutiny.

    But as noted here yesterday, it did so barely, and not in the manner that many constitutional law experts and the high court’s four moderate to left-of-center justices had thought it would. And the opinion also included a shrill dissent that envisions a vastly ineffective federal government. As former U.S. Solicitor General Walter Dellinger said during yesterday’s ACS press briefing if the dissent had carried the day it would have marked and “extraordinary revolution” in constitutional law jurisprudence.

    Although the federal government argued that the law’s integral measure, the minimum coverage provision, was constitutional on two major fronts, it was largely thought that it would be upheld as a valid regulation of commerce. The activity of the health care market represents nearly 18 percent of the nation’s economy.  

    But that did not happen. And some constitutional law scholars say that fact should not be ignored.

    Chief Justice John Roberts’ majority opinion provides some language suggesting the high court was not radically re-reading precedent on the commerce clause. But a careful reading of his opinion reveals that the libertarian argument for a vastly cramped interpretation of the commerce power carried the day.

    As The New York Times’ Adam Liptak put it, “Five justices accepted the argument that had been at the heart of the challenge brought by the 26 states and other plaintiffs: that the federal government is not permitted to force individuals not engaged in commercial activities to buy services they do not want. That was a stunning victory for a theory pressed by a small band of conservatives and libertarian lawyers. Most members of the legal academy view the theory as misguided, if not frivolous.”

    Justice Ruth Bader Ginsburg in her concurring opinion also took the chief justice to task for a “rigid reading” of the commerce clause that “makes scant sense and is stunningly retrogressive.”

  • June 28, 2012
    Guest Post

    By Adam Winkler, Professor of Law, UCLA. This piece first appeared on The Huffington Post.
     


    Today's Supreme Court is often referred to as Anthony Kennedy's Court. Although Kennedy is the swing justice who usually casts the deciding vote in close cases, the landmark ruling this week in the healthcare cases clearly marks the maturation of the "Roberts Court."

    Chief Justice John Roberts was the surprising swing vote in today's Obamacare decision. Although he agreed with the four conservative justices, including Kennedy, that the individual mandate was not a regulation of interstate commerce, he voted with the Court's moderates to hold that it was justified as a tax. Because people who don't obtain insurance pay a tax to the IRS, the mandate was within Congress's power to raise taxes for the general welfare. As a result, the Affordable Care Act was upheld.

    With this deft ruling, Roberts avoided what was certain to be a cascade of criticism of the high court. No Supreme Court has struck down a president's signature piece of legislation in over 75 years. Had Obamacare been voided, it would have inevitably led to charges of aggressive judicial activism. Roberts peered over the abyss and decided he didn't want to go there.

  • April 16, 2012

    by Jeremy Leaming

    Plenty of legal scholars and others have been unmoved by the primary argument leveled against the Affordable Care Act, the broccoli argument, and justifiably so.

    But after oral argument in HHS v. Florida, where Supreme Court Justices Antonin Scalia and Samuel Alito appeared to embrace the simplicity of the argument – if Congress can make you purchase health care insurance, there will be no limiting principle on congressional power and it will soon mandate us all to buy broccoli – expressions of astonishment and concern abound.

    In a piece for The Atlantic, Harvard Law School Professor Einer Elhauge details why the broccoli argument is not only wobbly, but dangerously flawed.

    Scalia cited the the broccoli concern during oral argument when demanding the government’s lawyer to articulate a limiting principle on Congress’s power to regulate commerce among the states.  

    Elhauge notes first that the limiting principle has already been articulated the Supreme Court as follows: “a federal law must (1) involve economic regulation (2) that addresses a national problem (3) that affects interstate commerce.”  

    Walter Dellinger, former Solicitor General, articulated a limiting principle slightly differently during an ACS briefing on oral argument, saying “the power to regulate commerce among the states extends to regulation of those purchases, which are inevitable, of goods and services, which will be provided to the individual even if they have made no arrangements to pay for them, where the cost will be shifted to others in a way that undermines an undoubtedly constitutional regulatory scheme.”

    It’s the limiting principle already adopted by the Supreme Court through other cases that the challenges are itching to change, Elhauge says. (In an ACS Issue Brief, Simon Lazarus explains the radical nature of the challengers’ agenda to topple health care reform.)

    “They want the justices to read into the Commerce Clause a new limiting principle, one that bars laws mandating the purchase of any product,” Elhauge writes. “But however attractive that kind of new limiting principle might seem, it cannot be inserted into the Constitution by judicial fiat when it lacks support in constitutional text, history, or precedent.”

  • April 5, 2012

    by Jeremy Leaming

    President Obama’s warning that the Supreme Court should avoid destroying health care reform has not only irked a federal appeals court judge, but has spurred Republican leaders in the Senate to rush to the defense of the lifetime-appointed justices.

    Responding to a reporter’s question about oral arguments in HHS v. Florida, where Justice Antonin Scalia embraced the simplistic broccoli argument, Obama said the high court would be ignoring precedent if it were to invalidate or greatly hobble the Affordable Care Act. The president noted that Supreme Court precedent holds that Congress has broad power to regulate commerce and to tax and spend for the general welfare. “That’s not just my opinion, by the way,” Obama said. “That’s the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices who said this wasn’t even a close call.” (Obama was referring to appeals court Judges Laurence Silberman and Jeffrey Sutton, who ruled that the health care law’s integral measure -- the minimum coverage provision -- was a valid exercise of Congress’ power to regulate interstate commerce.)

    As TPM reported, the president’s defense of the health care law apparently prompted Judge Jerry Smith of the U.S. Court of Appeals for the Fifth Circuit presiding in a challenge to a part of the Affordable Care Act to demand that Attorney General Eric Holder submit a letter to the appeals court stating the administration’s understanding of judicial review.

    Holder responded in a letter to the appeals court judges in Physician Hospitals of America v. Sebelius that the DOJ “has not in this litigation, nor in any other litigation of which I am aware, ever asked this or any other Court to reconsider or limit long-established precedent concerning judicial review of the constitutionality of federal legislation.”

    Holder noted that the question of judicial review was resolved in the 1803 case of Marbury v. Madison.

    The attorney general also reminded the Fifth Circuit judges that judicial review was not an issue in the case before them.

  • April 4, 2012

    by Jeremy Leaming

    The right-wing challengers of the Affordable Care Act have spent more than a year honing the broccoli argument – if the federal government can require people to buy health care insurance then our fragile liberty will crumble because the monstrous federal government will order us all to buy broccoli, gym memberships and, well, who knows what else.

    Last week’s oral argument in HHS v. Florida revealed that the broccoli argument is seemingly being taken seriously by more than just libertarian law professors, such as Georgetown’s Randy Barnett. Justice Antonin Scalia aped right-wing talking points when he pelted Solicitor General Donald Verrilli’s defense of the ACA’s minimum coverage provision, which will require some people to carry a minimum amount of health care insurance starting in 2014, with the, ‘oh hell-broccoli-is-next,’ argument.

    But former Mich. Gov. Jennifer Granholm (pictured) hopes the Supreme Court’s conservative justices can get up-to-speed on how the health insurance market works, and consider how invalidating the landmark law will impact the lives of tens of millions of Americans who do not have the luxuries the high court justices enjoy. 

    Granholm’s hope, however, may likely be too much of a stretch, especially for a conservative majority that found a way to run roughshod over longstanding precedent in Citizens United v. FEC, giving corporations unfettered ability to influence campaigns.  

    Granholm, a speaker at the 2009 ACS National Convention, writing for Politico focuses on her hairdresser, Carmelita, who explained to Granholm that she already participates in the health care insurance market, albeit in a manner that leaves her wishing she could afford health care insurance.

    Carmelita’s employers do not provide health care insurance, and she can’t afford to purchase coverage. “It’s just too expensive,” she said. “No way I can afford it.”

    But if she could afford it, she would gladly purchase it, because she’s still “paying off a $3,000 health care bill from last year when I had walking pneumonia and finally went to see the doctor. They ordered an X-ray of my chest, and my life hasn’t been the same since, trying to pay that medical bill. Of course, I’d have health insurance if I could afford it! Anybody would.”