TIM JOST INTERVIEWS ANDY KOPPELMAN ABOUT KOPPELMAN’S NEW BOOK, THE TOUGH LUCK CONSTITUTION (Oxford University Press 2013).

Q. (Tim Jost) Your book explains, for the general reader, what was at stake in the health care fight and what the Supreme Court did.  Why should the general reader care?  All this is old news.

A. (Andy Koppleman) If you’re sitting on a hill, and a large boulder rolls past you, it’s a good idea to look uphill to see if any more boulders are coming.  The history matters because it shows that there are real dangers.

Last spring, the Supreme Court came within one vote of taking health insurance away from more than 30 million people.  Chief Justice John Roberts declined to join the four judges who wanted to do that, but he embraced all their principles.  Those principles are nasty.  All five judges think that universal health care would be unconstitutional.  All are suspicious of a law that asks the healthy and rich to support medical care for the sick and poor.  All of them are still on the Supreme Court.  They continue to exercise political power over the rest of us.  Americans need to understand what happened.

Q.  So what do you tell us that we don’t already know from the news stories?

A.  My book explains why Obama decided to include the unpopular provision requiring everyone to have insurance.  I also show that the Republicans, who originally proposed that idea, turned against it just because they wanted to deny Obama a victory.  Most importantly, I show where they got the idea that the mandate was somehow a violation of an important liberty.

Q.  Why did the constitutional case take the form it did?

A.  The Republicans’ objection to the Act was a combination of politics and substance.  Some of them honestly thought it was bad policy.  But you can’t challenge a law in court because you don’t like the policy.  You need to make a constitutional objection.  The constitutional objection was invented, in sketchy form, just as the bill neared passage and almost instantly became Republican Party orthodoxy.  It relied on an extreme libertarian philosophy, which holds that, if you get sick and can’t pay for it, that’s your tough luck.  The challengers’ arguments would have struck down the Act even if the alternative was a huge population of uninsured.  The dark heart of the case against the ACA is the notion that the law’s trivial burden on individuals was an outrageous invasion of liberty, even when the alternative was a regime in which millions were needlessly denied decent medical care.

Q.  What about the legal arguments?

A.  These are less complex than many people think.  Insurance is part of commerce among the several states.  Congress can regulate it.  Therefore, Congress can prohibit health insurers from discriminating on the basis of preexisting conditions.  Under the Necessary and Proper Clause, it gets to decide what means it may employ to make that regulation effective.  I explain how the challengers tried, and failed, to get around this simple argument.

Q.  Much of your book deals with the history of these constitutional provisions that formed the basis for the ACA litigation.  Why should we care about this history?

There are two reasons.  One is that, in interpreting any law, it is helpful to know the reasons why the law was passed.  The second is that the framers of the Constitution were very bright people, and their insights are useful in addressing today’s problems.

The Constitution was adopted specifically in order to give Congress power adequate to address the nation’s problems.  That is its fundamental and overriding purpose.  The health care issue is one that the states had tried and failed to address: only Massachusetts did it, and its circumstances were very unusual.  A situation in which neither the states nor the federal government could solve the country’s problems was what we had under the Articles of Confederation.  It is precisely what the Constitution was intended to prevent.

Q.  What are the boulders that you suggest may still be coming down the hill?

A.  The real moral force behind the challenge to the ACA wasn’t any technical legal argument.  It was most clearly stated at the oral argument, by Justice Antonin Scalia.  The counsel for the United States argued that the state legitimately could compel Americans to purchase health insurance, because the country is obligated to pay for the uninsured when they get sick.  Scalia responded:  “Well, don’t obligate yourself to that.”

Q.  Does Justice Scalia really think that there’s no obligation to care for sick people?  Why was he saying this?

A.  The answer has to do with the structure of constitutional law.  If you want to trash the ACA –- and Scalia did –- you have to assert constitutional limits that would exist even if there were no other way to deliver medical care to everyone.

This is why so many people (including, in the end, a near-majority of the Court) who were not Tough Luck Libertarians at all, who would find that philosophy repellent, nonetheless found themselves saying Tough Luck Libertarian things, and making claims based on a Tough Luck Constitution –- a constitution in which there is no realistic path to universal health care.  That Constitution won’t be attractive unless Tough Luck Libertarianism is right that it is acceptable to deny people the medical care they need.  The challengers to the ACA talked a lot about slippery slopes – at the bottom of this one was a law requiring you to buy broccoli – but there’s a slope in the other direction as well.  Once you decide that it’s acceptable to hold your nose and make this kind of argument, it will be easier next time.

Q.  The NFIB case which the Supreme Court decided was only one of dozens of cases that have been brought challenging the Affordable Care Act.  One of those cases brought by Liberty University challenged that provision of the ACA requiring large employers to offer health insurance to their employees or pay a tax penalty.  Liberty University lost that case in the Fourth Circuit Court of Appeals, but the Supreme Court remanded it for reconsideration.  Is there any possibility the courts will find that Congress lacks the power to require large employers to offer health insurance?  Would Tough Luck Libertarianism go this far?

A. It’s hard to see how.  The employer mandate is described as a tax in the statute.  The individual mandate isn’t, but the Court upheld it as a tax.  Chief Justice Roberts also objected to the mandate because you don’t have to do anything to be subject to it.  To be subject to the employer mandate, you have to decide to employ people.  Congress has had the power to regulate economic transactions for nearly a century.  Even the Roberts Court isn’t going to change that.

Q.  Several states are refusing to implement the insurance market reforms imposed by the ACA and one state is considering legislation that would prohibit the licensure of an insurance plan that would participate in an ACA exchange.  Does the Supreme Court’s decision give any hope to states that are still refusing to assist in implementing the ACA?

A. If states won’t participate in the health exchanges, then the Federal government can and will do it for them.  That has already been happening.  It has been well settled for years that state laws designed to disrupt the operation of a federal law are unconstitutional.

The one part of the Court’s decision that empowers the states to stay out of the federal scheme is Chief Justice Roberts’s decision that states could refuse to provide Medicaid to their poorest citizens.  The Court ruled that the states could turn down the Medicaid expansion while continuing to participate in the old Medicaid program.  One might have expected that no state would turn down such a good deal: the federal government will pick up 100% of the costs until 2016, with its contribution gradually declining to 90% in 2020 and thereafter.  And there is added pressure to take the money, because previous forms of federal aid were cut off.  Hospital associations agreed to accept cuts to their reimbursement rates, expecting that this would be more than made up by money from patients newly insured through Medicaid.  States refusing the money would not only be hurting their own working poor.  They’d be rejecting a huge infusion of cash into their economies, creating many, many jobs –- good jobs, for doctors and well-paid medical technicians.  That money has a powerful multiplier effect, creating jobs outside the health sector as well.

Many Republican governors have now turned down the money, but that number is shrinking.  Gov. Rick Scott of Florida, for instance, recently changed his mind.  The big question mark is Texas.  One in four Texans is uninsured.  The ACA would insure almost two million of them.  The expansion would give Texas an additional $52.5 billion from 2014-2019, which is more than half of the state’s annual budget.  Gov. Rick Perry has insisted that he won’t take the money.  If you are a hospital executive in Texas, you probably have a fiduciary duty to do all you can to defeat Rick Perry.  Meanwhile, the Court has succeeded in hurting millions of people.  Four days before Perry announced his decision, the federal Agency for Healthcare Research and Quality ranked Texas as having the worst health care in the nation.  This is the Court’s notion of “liberty.”
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Timothy S. Jost holds the Robert L. Willett Family Professorship of Law at the Washington and Lee University School of Law. He is a co-author of the casebook, Health Law, used widely throughout the United States in teaching health law, and of a treatise and hornbook by the same name. His other publications are simply to numerous to list.

Andrew Koppelman is John Paul Stevens Professor of Law, Northwestern University.  He has written extensively about the legal debate surrounding the Affordable Care Act for Salon. His latest book, The Tough Luck Constitution and the Assault on Healthcare Reform, will be published by Oxford University Press on March 22, 2013 and available online and through bookstores everywhere.

“Andrew Koppelman has magnificently captured the current legal, political and policy-related lay of the land in Washington. His insightful analysis here should be mandatory reading for anyone concerned about the future of health care in America.”

–Tom Daschle, former Senate Majority Leader

 

 

 

United States v. Caronia: Some Preliminary Thoughts on the Second Circuit’s Decision Invalidating the Ban on Off-Label Promotion

Earlier this week, the Second Circuit Court of Appeals at last issued its decision in United States v. Caronia and it is momentous (and predicted to be heading to the Supreme Court).  A two-judge majority of the Circuit Court held that Alfred Caronia, a pharmaceutical sales representative, “was convicted for his speech – for promoting [the central nervous system depressant Xyrem] for an off-label use – in violation of his right of free speech under the First Amendment.”

The majority’s decision begins with a threshold question.  Was Caronia convicted for conspiracy to misbrand Xyrem because he engaged in off-label promotion qua off-label promotion, that is, for his speech?  Or, was his speech simply “evidence that the ‘off-label uses were intended ones[] for which Xyrem’s labeling failed to provide [the required] directions[,]” as the government argued on appeal?  The former would implicate the First Amendment, but the latter would not.  The Supreme Court has held that “[t]he First Amendment … does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent.”  As the Caronia dissent (colorfully) explained, “Abby and Martha [do not have] a First Amendent right to offer arsenic-laced wine to lonely old bachelors with the intent that they drink it. … And any statements Abby or Martha made suggesting their intent—even if all of the statements were truthful and not misleading—would not be barred from evidence by the First Amendment…”

The majority found that Caronia was convicted for his speech alone, pointing to the lower court’s instructions to the jury and to a number of statements that the government made at trial including “[Caronia] conspired through some act of misbranding, and that act of misbranding … was the promotion on October 26^th and November 2^nd[,] marketing [a] drug for unapproved uses.”  Caronia’s conviction must therefore be vacated, the majority concluded.  The Food Drug and Cosmetic Act does not “criminaliz[e] the simple promotion of a drug’s off-label use because such a construction would raise First Amendment concerns.”   The majority did not disagree with the general proposition that speech may be used as evidence of intent, and it expressly declined to decide the specific question whether the FDCA violates the First Amendment by “defin[ing] misbranding in terms of whether a drug’s labeling is adequate for its intended use, and permit[ting] the government to prove intended use by reference to promotional statements made by drug manufacturers or their representatives.”  Even if the Second Circuit’s decision stands, then, the government may be able to argue that Caronia is a case about an erroneous jury instruction with limited practical effect

The majority went on to hold that a ban on off-label promotion qua off-label promotion—like the Vermont law barring drug companies from using physician-specific prescribing data to craft physician-specific sales pitches at issue in the Supreme Court’s 2011 decision in Sorrell v. IMS Health (which I discussed on this blog here)—is unconstitutional regardless of whether strict or intermediate scrutiny applies.  The majority gave short shrift (no shrift, really) to the argument that the ban on off-label promotion is necessary to preserve the integrity of the FDA’s drug approval process, suggesting that the government could “minimize … manufacturer evasion of the approval process” by imposing “ceilings or caps on off-label prescriptions.”

The majority did not elaborate on how ceilings or caps on off-label prescriptions would work, on the grounds that the First Amendment puts the burden on the government to demonstrate that they would not.  Here, too, there may be an opening for the government, to make a stronger case to the Supreme Court than it did before the Second Circuit (in its briefs or at oral argument) that ceilings or caps would not be “administrable, feasible, or otherwise effective” and that the ban on off-label promotion therefore provides a direct, narrowly-tailored, and crucial incentive to clinical research into already-approved drugs.  As the dissent suggested, “[a] ceiling on off-label prescriptions would require collecting data from countless numbers of doctors and patients and, given the medical uncertainties involved, could needlessly (and simultaneously) result in the denial of some effective treatments and the overprescription of ineffective and even dangerous ones.”

 

Recommended Reading: Recent Legal Scholarship on the Affordable Care Act’s Medicaid Expansion

As Frank Pasquale noted recently at the Health Law Prof Blog and here at HRW, law review scholarship is starting to emerge on the Supreme Court’s holding in National Federation of Independent Business v. Sebelius that the Patient Protection and Affordable Care Act’s expansion of the Medicaid program was an unconstitutionally coercive exercise of Congress’ Spending Clause authority.  Professor Pasquale recommends Plunging into Endless Difficulties: Medicaid and Coercion in the Healthcare Cases, an article co-authored by Nicole Huberfeld, Elizabeth Weeks Leonard & Kevin Outterson, writing that it is “sure to make an impact.”

Also well worth reading is Samuel R. Bagenstos’ article, The Anti-Leveraging Principle and the Spending Clause after NFIB, which is forthcoming in the Georgetown Law Journal.  Professor Bagenstos contends that Chief Justice Roberts’ opinion in NFIB is best read narrowly as setting forth a three-part test–which Professor Bagenstos terms the “anti-leveraging principle”–for determining whether a condition Congress places on participation in a joint federal-state program unconstitutionally coerces the states to participate.  To apply the anti-leveraging principle, one must first ask whether a condition on federal spending “change[s] the terms of participation in [an] entrenched cooperative program[.]”  The second question is whether the condition leaves a state without a real choice to decline the funds at issue because, for example, there is a “very large amount of money at stake[,]” as there was with the Medicaid expansion.  The third and final question is whether “Congress was using a state’s desire to continue to participate in a lucrative program as leverage to force the states also to participate in a separate and independent program.”  Only if the answer to all three questions is yes, Professor Bagenstos contends, should a court find that a spending condition is unconstitutionally coercive.

The final section of Professor Bagenstos’ article, in which he applies the anti-leveraging principle, is particularly interesting.  Professor Bagenstos analyzes, among other things, the Affordable Care Act’s Medicaid maintenance-of-effort requirement, which Maine Governor Paul LePage has challenged, the Clean Air Act, the No Child Left Behind Act, Mitt Romney’s education reform proposal, and Section 504 of the Rehabilitation Act, and concludes that the Clean Air Act, which requires states to comply with certain provisions on pain of losing federal highway funding, is particularly vulnerable post-NFIB.

Stepping away from the constitutional questions addressed by the Supreme Court in NFIB, Jessica L. Roberts’ article Health Law as Disability Rights Law, which is forthcoming in the Minnesota Law Review, views the Medicaid expansion and other changes the ACA makes through the lens of “the historical division between the health and civil rights paradigms within disability law.”  As Professor Roberts explains, in the 1970s and beyond, disability rights activists actively rejected the health paradigm as grounded in an outdated, medical model of disability that failed to recognize that the barriers to access that people with disabilities faced had a strong social component.  The civil rights paradigm has its limits, though.  Courts have been reluctant to apply civil rights legislation such as the Rehabilitation Act and the Americans with Disabilities Act to Medicaid and other public programs “in a manner that ensures health-care services for people with disabilities.”  In the landmark Supreme Court case Alexander v. Choate, for example, the Court found that a state Medicaid program’s fourteen-day limit on in-patient hospital care did not discriminate against people with disabilities.  In so doing, the Court “construed the benefit at stake as a ‘package of health care services,’ not adequate, equitable, or accessible health care.”  Professor Roberts argues that “the ACA’s changes to public health insurance hold the promise to eliminate those barriers previously experienced by people with disabilities and, consequently, to reduce existing health disparities.”  Thus, while the Medicaid expansion and certain of the Act’s other changes “fall under the health law umbrella substantively, insofar as they promote access and equality for people with disabilities, they make a civil rights law impact.”  Professor Roberts’ article is thoroughgoing and thoughtful; I highly recommend it.

A Marbury for our time

[Ed. Note: If you haven't read this piece from Professor Joondeph first published on the day of the Supreme Court's decision in the aca litigation blog-- you should; it makes great sense that a version of it is posted now at Scotusblog.]

(Note: a revised version of this essay is now posted here at SCOTUSblog.)

Chief Justice Roberts’s opinion held that the minimum coverage provision falls within Congress’s power to impose a tax, and thus is constitutional. At the same time, he concluded that the mandate exceeded Congress’s power to regulate interstate commerce. Moreover, he (along with two Democratic appointees, Justices Breyer and Kagan) also held that the Act’s dramatic expansion of the Medicaid program is unconstitutional insofar as it jeopardizes the states’ preexisting Medicaid dollars. In short, the Chief Justice upheld the entirety of the ACA, but with some important caveats.

The end product was-not to put too fine a point on it-brilliant. It is brilliant act of judicial statesmanship in a way that parallels another landmark decision, Marbruy v. Madison.

Marbury is best known for its statement in defense of judicial review, the authority of the Court to declare acts of Congress (and the executive branch) unconstitutional. But to really understand Marbury, one has to place the Great Chief Justice’s decision in its political context. In February of 1803, Chief Justice Marshall knew that the Jefferson administration would have completely ignored the Court’s decision in Marbury had the justices ordered Madison to grant Marbury his judicial commission. (Indeed, the administration did not even dignify the proceedings by appearing. Only one side argued at the Court.) Thus, Marshall reached the Court’s conclusions-that the Jefferson administration had acted unlawfully, and that the Court had the authority to say so-while ultimately holding that the Court lacked jurisdiction, forcing it to dismiss the case. Marshall asserted the Court’s authority in a muscular fashion, delineating the constitutional constraints on Congress and the President, but without actually challenging the other branches’ powers. Marshall set down important constitutional markers while reaching an immediate result that favored the incumbent President, shielding the Court from any significant political danger or threat of retribution.

In the Health Care Cases, the immediate danger to the Court was not so grave or immediate. There was no chance that the President would simply ignore or disobey the Court’s judgment. Indeed, a sizable majority of Americans would have supported the conclusion that the individual mandate was unconstitutional.

Yet there was a real longer-term danger to the Court: it risked staining itself with the appearance of partisanship. This risk was especially acute given some other recent decisions (most prominently, Bush v. Gore and Citizens United) and some others headed the Court’s way (such as those involving the constitutionality of affirmative action and the Voting Rights Act). A steady string of 5-4 decisions on a range of controversial issues, cleaving perfectly along partisan lines, would present a real threat to the Court’s diffuse support–support that depends on the public’s faith that the Court stands above partisan politics, that it renders its decisions based on legal and constitutional principles.

The Chief Justice’s opinion today can rightly claim the mantle of bipartisanship and judicial modesty, and in this highest of high-profile cases. “We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.” The Chief’s paens to the limited role of the judiciary in our constitutional framework, stated eloquently during his Senate confirmation hearings, suddenly ring much more true.

Further, the opinion’s power to lift the Court above the polarized, partisan fray is apt to prove enormously valuable to its long-term institutional standing. Today’s decision largely immunizes the Court, at least for some time, from Democratic attacks that the five Republican appointees are “conservative judicial activists,” partisan hacks in judicial robes. If the Court declares that all governmental affirmative action programs violate the Equal Protection Clause next spring in Fisher, for instance, liberals will have a much harder time making the predictable accusations of partisanship stick. Today’s Case of the Century will stand as a salient counter-example.

At the same time, the Chief Justice established some important, conservative doctrinal beachheads. Specifically, he reaffirmed or established (depending on your perspective) some potentially important limits on Congress’s powers under the Commerce Clause, the Necessary and Proper Clause, and the General Welfare Clause. In fine, Congress cannot use the Commerce Clause to regulate commerce in a manner that compels people into commerce; it can only regulate existing commerce. Further, such regulation, even if “necessary,” can never be “proper,” no matter its importance to a broader regulatory scheme. And the General Welfare Clause does not permit Congress to use the states’ dependence on an existing conditional spending program as a means to forcing them to accept significant, qualitative changes to that program; rather, states must be given the choice to accept or deny the funds associated only with the program’s modifications–at least when the program is huge like Medicaid.

We can debate the significance of these limits. And whatever we think today, what will really matter is how future Court majorities interpret today’s opinion. But regardless, the Chief Justice stated clearly that the Obama administration’s principal defense of the Act–as a regulation of interstate commerce–amounted to a regulatory overreach. He embraced the essence of the conservative constitutional argument–that Congress cannot uses its commerce power to regulate “inactivity.” And in wrapping the Court in bipartisanship, he has made it much more difficult for liberals to attack the Court’s conservative decisions going forward.

Further, it is important to keep in mind an important difference in these controversies. Today’s decision merely held that the ACA is permissible; a Republican Congress and President could repeal the Act in toto in January. By contrast, decisions like Citizens United–or potential decisions declaring affirmative action or Section 5 of the Voting Rights Act unconstitutional–could only be undone via constitutional amendment (or a subsequent overruling).

Liberals should be extremely excited by today’s decision. The bottom line is that the most significant piece of social welfare legislation since the 1960s survived the exacting review of a conservative Supreme Court. As a matter of policy, in an age of growing economic inequality, the Court has validated the biggest effort at redistribution since the end of the Great Society. But liberals should not forget that, in the long run, it was the views of the Federalists–and Chief Justice Marshall in particular–that ultimately shaped the Nation. By cultivating the Supreme Court’s institutional legitimacy, Marshall was able to pursue his nationalist visions, even while conceding momentary defeats to the Jeffersonians. Marshall saw that, as the Court’s prestige grew, so, too, did the influence of the Chief Justice over the growing Nation.

Today’s real winner was the Court–and by extension the Chief Justice. It was a stroke of judicial genius. A Marbury for our time.

The Umpire Throws a Curveball

During his Senate confirmation hearings, John Roberts famously said that he would “call balls and strikes,” and not “pitch or bat.” It was a memorable promise of judicial modesty, but one that sometimes rang hollow after decisions like Citizens United. On Thursday, in a remarkable opinion that surprised almost everyone, Chief Justice Roberts joined the four liberal justices to uphold the individual mandate as a constitutional tax. Was this the modest umpire he promised us? Did he break ranks to preserve the Court’s reputation? (Note, Justices Breyer and Kagan also broke ranks on the Medicaid expansion question.) Was this Marburian or Machiavellian?

Either way, the Court’s opinions are full of curveballs. So I’d like to add to the chorus (cacophony?) of law professor post-game analysis and try to make sense of some of the fault lines and themes.

Death and taxes: The mandate as a tax snuck up on most of us. My favorite internet meme from yesterday was Admiral Ackbar’s warning: “It’s a tax!” Judge Posner on Slate.com astutely observed that legislators rarely call revenue provisions or anything else “taxes” anymore, because it has become a dirty word. President Obama still refused to say “tax” when addressing the Court’s decision. (Admiral Ackbar is not a cabinet member.) The Roberts majority held that the mandate was not a tax under the Anti-Injunction Act, but was a tax for constitutional purposes. The label Congress gave to the mandate (calling it a “penalty” rather than a “tax” in the Affordable Care Act) was helpful to the former but not the latter. Tax scholars, good luck with this one.

Inactivity: As many of us predicted, the Commerce Clause argument would rise or fall based on whether Kennedy Roberts bought into the action/inaction distinction, something that well-respected conservative jurists like Judge Silberman and Judge Sutton didn’t. In fact, Roberts bought the Congress-is-creating-not-regulating-commerce argument whole cloth (pp. 18-23). He and the conservative justices wrote about the uninsured like they exist in some sort of Precambrian pre-commerce period where they face zero risk of getting sick or injured and don’t free ride on the rest of us.

Justice Ginsburg’s opinion could not have been better on this point–her opinion is a realist tour de force on how health insurance really works. In the real world. She doesn’t bother with silly analogies. She even identifies some limiting principles: the free rider problem is significantly worse in health insurance than in other markets; the free rider problem is directly related to interstate commerce, and is not at all attenuated; there’s no problem with proximity. She obliterates the broccoli analogy (pp. 28-29 of her dissent). So much so that she even quotes Robert Bork (“Judges and lawyers live on the slippery slope of analogies; they are not supposed to ski to the bottom.”). It would take a remarkable (and probably imaginary) string of events and causal links for Congress to ever justify a vegetable mandate (luckily, my wife and I are not constrained by the Commerce Clause at home with our children).

What disappoints me about the joint dissent (by Alito, Kennedy, Scalia, and Thomas) is that it doesn’t seem to appreciate why health insurance is a unique problem of unique scale that requires unique solutions like mandates. How do you pretend that the uninsured are pre-commerce? How do you pretend a $2.5 trillion industry doesn’t exist? (Roberts at pp. 18-19). Is health care like Kaiser Soze? The uninsured cost each insured family about $1,000 per year in additional premiums. The uninsured consume $100 billion in health care each year. Over 60% of the uninsured visit a doctor or the ER every year. If this is what Precambrian pre-commerce looks like, it would be like single-celled creatures riding motorcycles and talking on cell phones. Luckily for the humans impacted by the Affordable Care Act, inaction shields us only from the Commerce Clause, not the Tax Clause. (Roberts, at p. 41).

Congress can create choices, but not coerce: It struck me that both the mandate and Medicaid expansion essentially boiled down to whether Congress is forcing individuals and states to do something or merely giving them choices. First, the mandate survived as a tax rather than a penalty because Roberts found that the amounts charged in section 5000A for going uninsured (the “shared responsibility payment”) were proportionate and weren’t coercive. On page 35 of his opinion, he notes that “for most Americans the amount due will be far less than the price of insurance, and by statute, it can never be more.” In footnote 8, he then notes that someone making $35,000 a year in 2016 would owe the IRS only $60 per month for going uninsured, which is less than the $400 a month it would cost to buy insurance. That’s a real choice and it’s not coercive. That little passage may have saved the entire Affordable Care Act, characterizing the mandate as a tax and not a penalty.

Likewise, Medicaid expansion boils down to the same issue– Is Congress coercing states and thus abusing its spending power, or do states have a real choice? The threat to withhold all Medicaid funding if states don’t expand along with the Affordable Care Act is coercive; but withholding new funds and preserving existing federal Medicaid funding isn’t– it’s “a genuine choice.” (Roberts, at p. 58). In the coming weeks, I look forward to discussing with colleagues what this means for all the joint federal-state programs we have. Does it mean Congress can giveth but not taketh away? Will this decision open the floodgates to litigation challenging federal spending conditions? Will Congress, as Justice Ginsburg argues, avoid amending these sprawling statutes and instead decide to repeal and reenact huge programs like Medicaid to avoid this issue? (Ginsburg, at p. 38) For my money, the conditional spending decision will affect many more ongoing and future laws than the Commerce Clause holding.

Weak dissent: Finally, Judge Posner also remarked on the surprisingly weak joint dissent by the conservative justices, which also struck me when I read it. We didn’t get Scalia’s customary fire-breathing screed. Indeed, Justice Ginsburg’s opinion reads like a genuine dissent, which might be a sign that Roberts changed his vote, as many are speculating.

In any case, the 193-page document will give law nerds like me a lot to chew on in the coming weeks, months, and years. The umpire certainly threw us a few curveballs.

Silver Linings for the Losers in the PPACA Rulings

There are many excellent commentaries on the Supreme Court’s rulings today. Pam Karlan offers a great summary of the opinions:
There were two issues– two big issues and then two minor issues– before the court . . . . The two big issues were: was the individual mandate constitutional, and was the expansion of Medicaid to cover a great deal many more people who are near the poverty line constitutional?

The two minor issues were: could the court hear the case at all at this point, and if there was any provision of the act that was unconstitutional, what happened to the rest of the act?

The bottom line was that the individual mandate is constitutional and the expansion of Medicaid to cover more people is constitutional, but–and this is an important but–states cannot have their existing Medicaid funds cut off if they decline to participate in the expansion of Medicaid to millions of additional people.

Here are some counterintuitive perspectives on those results, focusing on the “silver linings” for today’s losers:

1) Silver Linings for Mandate Opponents

Reviewing Roberts’ ruling, Gerard Magliocca has said, “The Chief Justice gave a pretty speech about federalism, but ultimately he did nothing about it.” Other commentators worry that the long term implications are more menacing for federal initiatives. Ezra Klein calls Roberts a “political genius:”

[T]he legal reasoning in his decision went far beyond the role of umpire. He made it a point to affirm the once-radical arguments that animated the conservative challenge to the legislation. But then he upheld it on a technicality. It’s as if an umpire tweaked the rules to favor his team in the future, but obscured the changes by calling a particular contest for the other side. “John Roberts is playing at a different game than the rest of us,” wrote Red State’s Erick Erickson. “We’re on poker. He’s on chess.”

On the other hand, games of chess may not come up very often in the future. Is a Democratic syzygy like that of 2008 likely to happen again in the next decade or so? If not, we’re unlikely to see another piece of social legislation with the scope and ambition of the ACA. As I mentioned to my health care finance class back in 2009-2010, legislative environments like that one were only around in the mid-1930s and mid-1960s (and perhaps evident in Nixon-era environmental lawmaking). Post-Citizens United, we may never see one again (barring constitution-level upheaval). But prediction need not be that portentous. As Tim Jost states:

Chief Justice Roberts’ ruling on the Commerce Clause argument is clear and decisive and entirely adopts the argument of the states and of legal scholars who have opposed the ACA. It lays down a principle that Congress cannot compel Americans to engage in commerce against their will. Millions of Americans will go to bed tonight safe in the knowledge that Congress will never make them eat broccoli. But it is hard to think of any other examples where Congress would ever assert its Commerce clause authority to require the purchase of a private product. This is really a unique situation.

So the mandate’s opponents have achieved a new “gestalt,” but it’s unclear where the energy generated by such a shift will be directed.

2) Silver Linings for Medicaid Expanders

Andrew Koppelman is worried that red states will effectively cut off their nose to spite their face by turning down Medicaid expansion money:

From 2014 to 2016, the federal government will pay 100 percent of the costs. Then its share decreases, to 90 percent after 2020. Because the ACA also gives states assistance with their new administrative costs, overall state spending will actually be lowered. In the litigation, however, 26 states claimed — and Roberts agreed — that this conditional spending unconstitutionally coerced them. But let’s be clear: This is not about the states wanting to conserve their own money. It is about the states refusing to spend federal money, to help people that they do not want to help. (Paul Clement, the attorney for the challenging states, declared in oral argument that his position would not change if the federal government permanently paid 100 percent of the costs.)

It is likely that many of these 26 states . . . will now accept Roberts’ invitation to refuse the additional Medicaid funds. The people in those states who do all the menial jobs on which everyone else depends won’t get the medical care they need after all, because the temptation to trash Obamacare will be irresistible.

I’ve had a few reporters ask me about that possibility today, and the complementary worry that only insurance purchases at state exchanges (which are unlikely to be set up by red states) can be supported by premium tax credits. It’s possible that double-whammy will leave many of the uninsured just as badly off as they were before the ACA. But other commentators disagree about how red states will respond when the rubber hits the road. One of the leading national experts on health care federalism, Nicole Huberfeld, has said that she “would be surprised if many, if any, states opt out.” Tim Greaney offers these insights:

Should those states calling most loudly for repeal/overrule of the ACA now be true to their convictions and walk away from Medicaid expansion? To do so would be a remarkable triumph of ideology over their constituents’ public interest and economic interest. They would be abandoning a large segment of their most needy citizens AND leaving a lot of money on the table . . . All in all its a nice way of putting the ball in the court of the critics and framing the issue pretty starkly: do you want to participate in the shared national responsibility to take care of the less fortunate or is your State willing to leave a sizable segment of its citizens exposed to the dire consequences of being uninsured?

Astonishingly enough, it appears that four justices are committed to exactly that cruel course. But for today at least, the “rhetoric of reaction” did not carry the day.

originally posted on Concurring Opinions; photo credit, Kjetil Ree.

Facial vs. Applied in the Supreme Court Health Care Reform Cases

In addressing the constitutionality of statutes, courts create and develop constitutional doctrine.  Sometimes that doctrine works in a way that tests the constitutionality of a statutory provision in all of its applications, deciding either that it is unconstitutional “on its face,” so that it cannot be applied in any circumstances, or that it is constitutional in all of its applications.  But frequently that doctrine instead tests the constitutionality of a statutory provision “as applied,” sorting between constitutional and unconstitutional applications of the statute, thereby allowing the statute to be applied to the extent it is constitutional, but only to that extent.  The first approach calls for an all-or-nothing up-or-down decision; the second allows a statutory provision to be used in some, but not all, situations.  The first approach raises the stakes; the second approach lowers them.  The second approach also takes advantage of what courts are especially well-designed to do (and that legislatures are especially ill-equipped to do): focus on the particular – the particular applications of particular statutory provision in particular cases.

One of the issues lurking in the health care cases to be decided next week that has not received much press attention is which of these two ways the Court will address the constitutionality of the individual mandate.  Everyone — including the parties — seems to seek and expect  an up-or-down determination regarding the constitutional validity of the individual mandate.   There are many reasons to think that the Supreme Court will oblige.  Existing Commerce Clause doctrine dating back to at least Wickard (the wheat case) is shaped in a way that discourages as-applied challenges; prior successful challenges under the Commerce Clause such (Lopez, the Gun-Free School Zones case, and Morrison, the Violence Against Women case) have been facial challenges; and the as-applied challenge in Raich (the medical marijuana case) was soundly rejected.

In light of all this, odds are that the Supreme Court will either find the individual mandate constitutional on its face, following cases like Wickard and Raich, and foreclosing the possibility of as-applied challenges, or unconstitutional on its face, following cases like Lopez and Morrison, and foreclosing the possibility that it could be constitutionally applied in some instances.

But not necessarily. Judge Sutton, a Circuit Judge who was appointed by President Bush and had clerked for Justice Scalia, concluded that the right approach was to sort between the constitutional and unconstitutional applications of the individual mandate, not to declare that it is unconstitutional on its face and cannot be applied in any circumstance, and not to declare that it could be constitutionally applied in all circumstances.  Because the Court is being asked to articulate a principle for the first time, it is freer to capitalize on its comparative competence, follow the path illuminated by Judge Sutton, and render a decision that lowers the stakes rather than raises them.

[Ed. Note: Professor Hartnett's paper on the subject, Facial and As-Applied Challenges to the Individual Mandate of the Patient Protection and the Affordable Care Act, originally published in the University of Richmond Law Review, can be found here, the abstract can be found here.]

Why Defeating the Individual Mandate isn’t Much of a Victory for Individual Freedom

Dear Americans:

A recent poll by the Kaiser Family Foundation suggests that 51% of us believe the Affordable Care Act’s (ACA) minimum coverage requirement — its “individual mandate” — is unconstitutional. By my completely unscientific calculations, if about 41% of us like the ACA as a whole, then at least one in ten Americans likes our new reform law but believes the individual mandate to be unconstitutional.[1] This doesn’t count those who dislike the entire Act despite approving of its various features. In other words, there are a lot of us out there who agree with the ACA’s ends, but do not find them to constitutionally justify its means.

If this describes you, there’s something you should know about this lawsuit that’s been in the news lately. You can’t possibly win.

Yes, the Supreme Court may end up killing the mandate in an exciting 5-4 squeaker. But unless you passionately care about states’ rights in the purest, platonic sense, prepare to be deeply disappointed — win, lose, or draw.

My guess is that, if you support the plaintiffs in HHS v. Florida, you do so because you see the mandate as a threat to your personal freedom. Understandably, you don’t like the idea that your government can tell you to buy something you may not want. Health coverage itself is perfectly fine (a majority of the ACA’s detractors already have it), but coercion gives you the creeps. Me too.

Unfortunately, this lawsuit has little or nothing to do with our individual liberties. No iteration of the word “liberty” was mentioned in the March 27 oral arguments on the mandate’s constitutionality.  Attorney for the private plaintiffs, Michael Carvin, mentioned “individual freedom” once, but only after he said this:

Well I don’t think the test of a law’s constitutionality is whether it more adheres to the libertarian principles of the Cato Institute or the statist principles of someone else. I think the test of a law’s constitutionality is not those policy questions; it’s whether or not the law is regulating things that negatively affect commerce or don’t.

To borrow from Bob Dylan, a favorite of mine and the Chief Justice’s, if you’re looking for someone to protect you and defend you, Carvin just said “It ain’t me, babe.” In a nutshell, his argument was this: Congress cannot regulate inactivity, and not buying health insurance is inactivity. Neither proposition is self-evident, but assume for a moment that the latter argument is true. What is at stake here?

Congress premised the individual mandate on its power to regulate commerce between the states, pursuant to Article I, Section 8 of the Constitution. This power is, in a word, tremendous. The Supreme Court, in a 2005 case about the personal growth of medical marijuana, put it like this:

First, Congress can regulate the channels of interstate commerce.

Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce.

Third, Congress has the power to regulate activities that substantially affect interstate commerce.

Carvin didn’t argue that health insurance does not substantially affect interstate commerce. That would be insane. Rather, he argued that although “free riders,” who don’t buy health insurance until they need it, do have a substantial effect on the cost of insurance, they simply haven’t done anything until they do it. And until they do, the federal government can’t touch them. But their state can.

Why? The 10th Amendment says those “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Among these are your state’s “police powers,” which allow it to regulate your behavior in ways Washington can’t. If the plaintiffs here are fighting for any constitutional right at all, and not simply doing this to screw with the President, it is Florida’s right — not your own.[2]

I doubt this will satisfy you, as you probably care more for your own liberty than the exclusivity of your state’s right to violate it. But if the rest of the ACA is upheld (which remains a good bet) some states may do exactly that, and enact their own mandates to prevent free riders from jacking up already high premiums. As for Congress, although it would no longer be able to regulate interstate commerce with an individual mandate, it was never likely to do something so unpopular again anyway. Congress would, however, remain perfectly free to enact individual mandates under a number of its many other Article I powers. That was one of the first things Congress ever did, in fact.

There are other lawsuits out there which could actually help you, but these are premised on our Fifth Amendment rights. As Sixth Circuit Judge Sutton (Bush 43 appointee) has asked, “Why construe . . . this limitation — that citizens cannot be forced to buy insurance, vegetables, cars and so on — solely in a grant of power to Congress, as opposed to due process limitations on power with respect to all American legislative bodies?” But the plaintiff states have no stake in our liberties, and the private plaintiffs’ liberties have yet to be affected; focused on the fastest and easiest path to the ACA’s total destruction, both deemed the Bill of Rights “a loser” in this context.

This is what I mean when I say you can’t win. I write not to change your mind on any issue, but to warn you. We may disagree on the ACA’s mandate’s constitutionality, or even its necessity. But unlike many of this lawsuit’s political allies, who wax poetic on liberty despite having supported more draconian mandates 20 years ago, I’m willing to tell you what the Washington elite already knows:

You don’t have a dog in this fight, and the only prize is a bowl of kibble.

---

[1] A roughly equal number supports the ACA as a whole, but is not sure of the mandate’s constitutionality. The same poll found that only 12% of respondents would be angry if the Supreme Court killed the mandate provision.

[2] This is exactly why the Fourth Circuit dismissed a similar lawsuit brought by the state of Virginia: when a state challenges a law that only applies to individuals, its lack of a “personal stake” in the case means that it may misrepresent or even disserve the interests of the people who do.

Risky Business

Of course, all the usual caveats apply–oral argument can be misleading, it is hard to know exactly what the justices are thinking, etc., etc.

That said, most everyone seems to agree that the Court is headed towards invalidating the minimum coverage provision. Moreover, after listening to this morning’s argument, there seems at least a non-trivial chance that the Court will invalidate the entire ACA, all 2,700 pages, because the individual mandate is unseverable. (This would conveniently moot the Medicaid question that bedeviled them this afternoon.)

If the Court were to take both of these steps, I fear it would thrust itself into a full-fledged political maelstrom, the intensity of which the justices are unlikely to appreciate. Justice Thomas could not care less; he has said as much, many times. Justice Scalia probably feels the same way; the Constitution says what it says, period.

But the Court, regardless of its politics, cannot afford to be wholly oblivious to the political consequences of its decisions, at least as they relate to its own institutional standing. A decision invalidating the ACA (especially one that takes down the Act in its entirety), rendered by a predictable 5-4 split, will serve to reinforce the notion among many Americans that the Court is no more than another partisan institution, one that operates much like the other branches. That would be wrong factually, but I fear it would be the prevalent perception. And such a perception could do real lasting damage to the Court.

The danger seems especially acute given all the other highly partisan, ideological issues presently heading the Court’s way. Consider the following cases the Court is apt to decide in the next 2 or 3 years: the Arizona immigration case (to be argued next month); the Texas affirmative action case (to be argued in the fall); the Citizens United sequel from Montana (cert petition filed earlier this week); the constitutionality of Section 5 of the Voting Rights Act (currently percolating in the courts of appeals); the constitutionality of California’s Proposition 8 banning gay marriage (currently awaiting a decision from the Ninth Circuit about an en banc hearing); and the constitutionality of the Defense of Marriage Act (also percolating in the courts of appeals).

Again, we are just speculating at this point. But a steady stream of highly divisive, conservative 5-4 decisions, led off by a decision to invalidate the most important federal statute in a generation, could be toxic. It could take years for the Court to regain its standing among the American public.

This is not a partisan concern. It is a concern–voiced eloquently by Chief Justice Roberts on several occasions–rooted in beliefs about the importance of the Supreme Court, the independence of the federal judiciary, and ultimately the rule of law.

In other words, I fear the justices might be playing with fire. I sure hope they are careful.

[Ed. Note: This post originally appeared on the aca litigation blog, an amazing resource filled with case documents, transcripts, and in-depth analysis. Bradley Joondeph is a Professor of Law, Santa Clara University School of Law ]

No mandate? OK, but be prepared to pay

[Ed. Note: This commentary was published in the St. Louis Post Dispatch on Wednesday, 3/28, by  long time contributor to HRW, Thomas "Tim" Greaney, Chester A. Myers Professor of Law and co-director of the Center for Health Law Studies and John J. Ammann, director of Legal Clinics at St. Louis University School of Law.]

This week the U.S. Supreme Court is hearing three days of oral arguments on the constitutionality of the Affordable Care Act, the federal health care reform legislation. The pivotal question, whether a federal mandate to buy health care insurance can pass muster under the Commerce Clause, is one that has divided the lower courts and generated a backlash against this vital legislation.

Polls suggest that a strong majority of citizens agree with most of the specific provisions of the health care reform law, though many harbor doubts about its constitutional basis. While we believe there is ample precedent supporting the constitutionality of the law, it is worth considering whether a mandate-free health care reform law would be fairer or more effective. We think not.

Congress unquestionably could have avoided any serious constitutional questions by offering a carrot rather than the stick of a monetary penalty. For example, the law could have made the premiums for government-provided insurance such as Medicare less expensive for those who voluntarily purchase private insurance when they are young. While such an approach may strike some as more equitable, it would undermine effective health care reform. Indeed, this thought experiment exposes the short-sightedness of allowing unrestricted choice to trump all else in the health care debate.

The idea of the federal government using a carrot rather than stick to prompt certain behavior has a long and unquestioned pedigree in the law. Indeed, the federal government uses positive incentives in many aspects of American life to mandate compliance with its rules. For example, if states want federal highway funds, they have to follow federal transportation regulations. If states want federal education funds, they have to adopt federal guidelines such as those under the No Child Left Behind law.
Read more.

Why Can’t We Analogize the Mandate?

Legal arguments often rely on analogies.  Indeed, during the first year of law school, students learn to analogize and distinguish cases. “This case is like this one, not that one.” Good lawyers can always conjure up and deploy a good analogy.

So why was it so hard yesterday for some of the most skilled lawyers and judges in the country to identify a good analogy for the individual mandate– the Affordable Care Act’s requirement that almost everyone buy minimum essential health insurance coverage or pay a penalty?

After listening to Tuesday’s historic two-hour oral argument and reading the transcripts, I counted roughly 17 different analogies to the insurance mandate– none of which seem particularly apt.

Here’s a brief rundown of the analogies invoked yesterday (by both the justices and the advocates), and then some thoughts on why they fall flat:

1.  Is mandating health insurance like mandating that people buy cell phones to call 911? (Chief Justice Roberts).

2.  Is the mandate like a requirement that we buy insurance to pay for our own burial services? (A macabre Justice Alito, who’s right: we’re all going to die).

3.  Is the mandate like forcing us to buy broccoli? (Justice Scalia, invoking the dreaded broccoli analogy, which is apparently one of the parade of horribles that logically flows from the health insurance mandate, a canard that David Orentlicher has exposed).

4.  Is it like forcing us to buy cars? (Chief Justice Roberts and later, Justice Scalia, referring to the government’s reply brief, which tried to distinguish a federal mandate that we buy U.S. automobiles from the insurance mandate).

5.  Is it like imposing a duty to rescue strangers in trouble, like a “blind man walking in front of a car”? (Justice Kennedy).

6.  Is it like setting phone rates to require that some callers subsidize others? (Solicitor General Don Verrilli).

7.  Is it like requiring everyone to join an exercise club? (Justice Scalia).

8.  Is it like mandatory inoculation during a pandemic? (Justice Breyer, perhaps inspired by the movie Contagion).

9.  Is it like forcing people to deposit all their money in the Bank of the United States? (Justice Breyer’s colloquy with Paul Clement, counsel for the state plaintiffs, invoking McCulloch v. Maryland).

10.  Would it be like the federal government requiring us to buy car insurance if states didn’t already do so? (Justice Sotomayor, to whom Paul Clement responds that there are lots of people in Manhattan that don’t drive cars. True, but we all have bodies, which require regular tune-ups and sometimes major repairs).

11.  Would it be like Congress forcing everyone to buy “a great new wonder drug”? (Paul Clement).

12.  Is it like growing wheat (Wickard v. Fillburn), or weed (Raich), or carrying guns near schools (Lopez), or committing violence against women (Morrison)? Note that these are the four most direct Commerce Clause precedents, which get comparatively buried during oral argument, amid all the analogy-searching.

13.  Is it like Congress requiring everyone to buy an electric car? (Paul Clement, who is hitting his stride by this point).

14.  Is it like requiring us to buy anti-pollution devices or low-emission mufflers for our cars? (Justice Breyer, who is not).

15.  Is it like requiring that everyone buy private mortgage insurance? (Michael Carvin, counsel for the private plaintiffs).

16.  Is it like requiring some pesticides rather than others in food? (Justice Sotomayor).

17.  Is the decision not to purchase health insurance like local manufacturing, which is regulated federally because some products might, eventually enter interstate commerce? (Justice Sotomayor).

Finally, near the end of two hours of oral argument, Justice Kennedy–the one everyone is watching–hints that health insurance simply may be unique (p. 103 of the transcript).

This last point is important. The reason we can’t analogize health care is because it is, indeed unique. Now, to be fair, the justices are trying to locate a limiting principle here. If the federal government can make us buy health insurance, is there anything it can’t do?

Unfortunately, the limitation here isn’t so much a principle as the unique nature of health care and health insurance. None of the analogies above do the health care market justice (or the health insurance market, which is a distinction without a difference that was probably overemphasized yesterday).

The United States spends $2.6 trillion per year on health care, which is probably far more than all the markets in the above analogies combined. Everyone consumes health care at some point. Health expenses are one of the biggest contributors to bankruptcy in the United States. Insurance is designed to account for the capricious risks that we all face with a stroke of bad health luck. The federal government heavily subsidizes care, and both public and private insurance subsidizes the uninsured. Federal laws like EMTALA aren’t to blame here–most doctors and hospitals would (and do) cross-subsidize care for the uninsured on their own, even without a federal law governing emergency care.

All of the analogies above fail in some obvious way. Indeed, you’d have to combine the salient features of all 17 analogies and create a Frankenstein analogy to approximate the scope, scale, and dynamics of the health care market. Health care is not a conventional good or service by any stretch of the imagination. Whether Justice Kennedy acts on the flicker of intuition that he revealed on this point will probably decide the case.

Day 2, The Individual Mandate: Justice Kennedy Swings Again

More than a few prognosticators have posited a 5-4 split (either way) after reading the tea leaves of oral argument before the Supreme Court on the Individual Mandate today. I don’t disagree. I won’t venture a guess, up or down, but I will say that it is likely, as usual, that Justice Kennedy (surprise, surprise) will be the swing vote. As such, you can find below three Justice Kennedy quotes that may be indicative of which way he’ll swing. (page numbers refer to the page number of the transcript, linked here.) And for those of you swallowed by sorrow at the prospect of the Individual Mandate going down in flames, pay particular attention to the last quote and Justice Kennedy’s consideration of “degrees” of uniqueness as a cabining principle. It is, I believe, as I heard a particularly astute health law professor say today, indicative that “Justice Kennedy is in play.”

JUSTICE KENNEDY–Could you help — help me with this. Assume for the moment — you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?

I understand that we must presume laws are constitutional, but, even so, when you are changing the

relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution? (p.11-12)

JUSTICE KENNEDY: But the reason, the reason this is concerning is because it requires the individual to do an affirmative act. In the law of torts, our tradition, our law has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him, absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.

And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases, and that changes the relationship of the Federal Government to the individual in a very fundamental way.

JUSTICE KENNEDY: And the government tells us that’s because the insurance market is unique. And in the next case, it’ll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.

That’s my concern in the case. (p. 104)

Photo credit, Daniel Schwen.

Supreme Court ACA Hearings, Day One

[Ed. Note: This post is from Professor Bradley Joondeph's aca litigation blog. It's as good of a quick analysis of the day's Supreme Court argument as you'll find. Below the post, you'll also find I've added the first paragraph and a link to Professor Joondeph's article in the latest issue of the University of Richmond Law Review, Beyond the Doctrine: Five Questions That Will Determine the ACA's Constitutional Fate. These five questions are worth considering, as is, I might add, the linked issue of the University of Richmond Law Review, dedicated to the ACA, "Everything but the Merits."]

A quick analysis of today’s argument

Nothing is certain merely from listening to oral argument at the Court. But it sure seemed as if a large majority of the justices (and perhaps all of them) thought the Court has jurisdiction in this case and can proceed to address the merits of whether the minimum essential coverage provision is within Congress’s enumerated powers. There were several different theories, and there seemed to be some sharp disagreement as to whether the AIA is jurisdictional in nature. But it also seemed that a majority of justices could agree on a narrower proposition, something along these lines: (1) statutes stripping the courts of jurisdiction are generally construed narrowly, meaning that Congress must make its intent clear; (2) the ACA–especially in specifically demarcating the exaction in 5000A(b) a “penalty”–did not make Congress’s intent for the AIA to apply clear; thus (3) even if the AIA is jurisdictional, it does not apply to the penalty imposed in 5000A(b). (Perhaps some justices might concur only in the judgment, finding that the Government can waive the AIA in certain circumstances, as it did in Davis.)

No doubt, the meaning of the AIA (and whether it is jurisdictional in nature) are somewhat important in their own rights. But in the broader scheme, what matters from today is that the Court is almost certain to get to the minimum coverage provision’s constitutional merits. That is the question for tomorrow–the biggest single day at the Court since December 2000.
___________________________________________________________________________

Beyond the Doctrine: Five Questions That Will Determine the ACA’s Constitutional Fate

Bradley W. Joondeph, Professor of Law, Santa Clara University School of Law

The litigation challenging the constitutionality of the Patient Protection and Affordable Care Act (-ACA‖ or -Act‖) raises a number of interesting and important questions of constitutional law. But in cases of this magnitude and political salience, the Supreme Court’s deliberations typically are shaped by forces that transcend the relevant doctrine. The Court’s response to the ACA is unlikely to be an exception. Specifically, the Justices’ reactions to five questions–all of which go beyond the doctrinal merits–will likely determine the Act’s fate: (1) whether this is the sort of case in which judicial review is necessary, or instead one that the elected branches are capable of solving on their own; (2) whether the states are separately incompetent to reform the nation’s health care financing system, such that invalidating the Act will leave a policy void (and whether the existence of such a void should matter); (3) whether Congress’s power to adopt a more radical, single-payer-type system for all Americans should inform whether Congress has the authority to adopt the more incremental ACA; (4) whether the Court can invalidate the ACA, especially with an ideologically predictable 5-4 split, without appearing overly partisan to the American public; and (5) how Chief Justice Roberts will perceive the impact of this case on his legacy-as an opportunity to reaffirm the singular importance of judicial restraint, or as an instance where the Court’s intervention is necessary to preserve foundational principles. Each of these considerations extends beyond the precise constitutional questions presented. But in a case such as this, it is the Justices’ reactions to these broader questions that tend to drive their doctrinal analysis, rather than the other way around. – UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 46:763]

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

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.

Professor 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?

Professor 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

Professor 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

Bradley 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, 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

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

Professor Frank Pasquale wrote a featured Op-ed in The Record, New Jersey’s most awarded newspaper, regarding a constitutional right to health care. Professor Pasquale, who is Associate Director of the Center for Health & Pharmaceutical Law & Policy and Editor in Chief of HRW, writes:

SHOULD the Supreme Court weigh in on America’s great health care debate? Yes. It should declare a constitutional right to health care.

This right is already enjoyed by prisoners. Law-abiding citizens deserve it, too.

The United Nations’ Universal Declaration of Human Rights states, “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including… medical care.”

Many advanced countries have adopted – and lived up to – similar commitments.

Of course, that’s not on the Supreme Court’s agenda. Instead, it will decide whether to cripple last year’s health reform, known as the Affordable Care Act, by declaring the individual mandate unconstitutional.

I understand objections to the mandate. Cash-strapped Americans don’t deserve one more drain on their resources. I’m also not a fan of making people buy health insurance from private insurers. They waste a lot of money, and are one reason why U.S. doctors’ administrative costs are a whopping 400 percent higher than those in Canada.

If I designed the ACA, I’d have given everyone a public option, modeled on Medicare.

But I didn’t write the bill, Congress did. In precedents going all the way back to the 1819 case of McCulloch v. Maryland (and affirmed as recently as 2010), the Supreme Court has deferred to Congress’s constitutional powers to solve national problems.

Politics

The court risks looking political if it abandons that approach now. It has already jettisoned once-venerable holdings on campaign finance, equal protection and antitrust.

Read the full Op-ed here.

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