U.S. Supreme Court Health Reform Litigation, the Individual Mandate, Anti-Injunction Act, Commerce Clause and Even The Militia Act

March 22, 2012 by · Leave a Comment
Filed under: Health Law, Health Reform 

We are literally only days away from the Supreme Court oral arguments in the ACA litigation (or the Health Reform case as it is popularly known) and as such, we thought it would be of some help to publish again some of our past posts on aspects of the law now being challenged. In addition to being published here at HRW, many of the pieces below found further life elsewhere, the Washington Post, NY Times, The Record, The Health Care Blog, Health Law Prof Blog, Concurring Opinions, the aca litigation blog, to name a few. Some originated elsewhere and found a home here. Either way, they’re here in one place for your enjoyment as we all hold our breaths and get ready to attempt to count robed votes by virtue of questions posed in the arguments to come.

mark-a-hallProfessor Mark Hall, Wake Forest University School of Law

Constitutional Mortality: Precedential Effects of Striking the Individual Mandate

Why the 11th Circuit’s Opinion on Health Care Reform Self-Destructs

Judge Vinson’s Tea Party Manifesto

Commerce Clause Challenges to Health Care Reform

From Justice Story: A Postal Power Parable on Mandating Health Insurance

What’s Surprising about the Virginia Ruling Striking the Individual Mandate?

Are The Attorneys General’s Constitutional Claims Bogus?

Is it Unconstitutional to Mandate Health Insurance?

pasquale_frank_lg11Professor Frank Pasquale, Seton Hall Law

Professor Frank Pasquale featured in The Record on ‘A Constitutional Right to Health Care’

A Constitutional Right Not to be Bankrupted by Health Care Costs

Huq on Constitutional Challenges to HCR

Parsing “Populism” in Resistance to Reform

brad-joondephProfessor Brad Joondeph, Santa Clara University School of Law

aca litigation blog (All the briefs, docs, lawyers, helpful updates, analysis, etc. in one easy place. Prof Joondeph and Brandon Douglass are to be commended for this splendid effort — yeomen’s work and finely done. The aca litigation blog is automatically fed into our sidebar and we were pleased to offer a few of Professor Joondeph’s posts in full here at HRW, and very much look forward to posting more. If you haven’t checked it out yet, you absolutely should.)

Clarifying the AIA question

The Anti-Injunction Act Complications

Professor Tim Greaney, St. Louis University School of Law

Health Reform, a Class Act

blBradley Latino, J.D.

The Individual Mandate, a Brief History – Part I, Conservative Origins

The Individual Mandate, a Brief History – Part II, The Republican Alternative (1993-1994)

The Original Individual Mandate, Circa 1792

kate-greenwood_high-res-2011-comp1Kate Greenwood, Research Fellow & Lecturer in Law, Seton Hall Law

Recommended Reading: Interesting Takes on the Individual Mandate

Michael Ricciardelli, J.D.

Judge Hudson, Bartleby the Scrivener and the “Tribeless, Lawless, Hearthless One”

Election Fallout and Why State Initiatives to Exempt Residents from Health Care Law are Not Just Symbolic

Missouri Votes Against Individual Mandate, May Impact Standing Argument in Federal Court

Judge Rules, Virginia Moves Forward Against Individual Mandate

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Clarifying the AIA question

September 19, 2011 by · 1 Comment
Filed under: Health Law, Health Reform 

brad-joondeph1I have had a great deal of off-line correspondence with several readers about the applicability of the Anti Injunction Act to all of the lawsuits challenging the minimum essential coverage provision. Thanks to everyone who has written; it has been extremely helpful.

I remain convinced, at least at this point, that the AIA poses a very serious threat to the Supreme Court’s hearing of any challenge to the individual mandate. That said, I think I have a clearer idea of the issues that will determine the resolution of that issue.

* First, and perhaps most important, there is a very real dispute as to whether one should see the mandate (codified at 26 USC 5000A(a)) as a stand-alone legal obligation, or instead merely as part of a provision that, taken as a whole, gives those persons covered by the provision a choice between acquiring health coverage and paying a penalty.

* Second, this matters greatly, for if 5000A(a) is truly a stand-alone legal obligation, it obviously is not a “tax” within the meaning of the Anti-Injunction Act (or the General Welfare Clause). It is simply a  command, an “economic mandate” in the words of Randy Barnett.

* Conversely, if the best way to see 5000A is in its entirety, giving “applicable individual[s]” a choice between either (a) buying insurance, or (b) remitting the applicable exaction on their tax return, then the provision might well be a “tax” within the meaning of the AIA, consistent with the reasoning of Judge Motz’s opinion in Liberty University.

There is much more to this issue. I think this question functions as a basic threshold, over which all other analysis of the AIA question must cross.

[Ed. Note: This post originally appeared on the aca litigation blog, an invaluable resource in following the various lawsuits pending against the Patient Protection and Affordable Care Act (PPACA or ACA). Bradley W. Joondeph, Professor of Law at Santa Clara Law School, publishes the aca litigation blog.]

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