Search results for "health care"

The Health Care Case: The Supreme Court’s Decision and its Implications – Now Available for Pre-ordering

The Health Care Case: The Supreme Court’s Decision and its Implications – A new book on last year’s controversial Supreme Court decision on Obamacare is now available for pre-order at Amazon. The book is edited by Columbia law professors Nathaniel Persily, Gillian Metzger, and Trevor Morrison, and published by Oxford University Press. It contains essays on numerous aspects of the health care decision by a wide range of scholars, including VC-ers Jonathan Adler, Randy Barnett, and myself. There is also a large number of contributions by leading scholars on the other side of the issue, including Jack Balkin, Jamal Greene, Andrew Koppelman, Gillian Metzger, and Neil Siegel, among others. The Oxford University Press website has a complete table of contents here.

My own contribution to the volume addresses the Court’s analysis of the Necessary and Proper Clause, and explains why the individual health insurance mandate was not “proper” even if it could be considered “necessary.” An earlier version of that essay is available on SSRN here. [...]

Continue Reading 0

House Hearing to Consider Illegal IRS Rule Implementing Health Care Reform

Today the House Committee on Oversight and Government Reform is holding a hearing on the Internal Revenue Service’s role in “Enforcing ObamaCare’s New Rules and Taxes.” Among the subjects of the hearing is a recent IRS rule authorizing tax credits and subsidies for the purchase of qualifying health insurance plans in federally-run exchanges. Although the plain text of the PPACA only authorizes tax credits in state-run exchanges, the IRS promulgated this rule to ensure the credits (and associated subsidies) are available nationwide. This rule will affect quite a few states because somewhere between 15 and 30 states (if not more) will fail to create exchanges by 2014. The rule is also illegal.

I have co-authored testimony for the hearing with Michael Cannon of the Cato Institute arguing that the IRS rule is not authorized by the PPACA. The testimony is largely based on our forthcoming article in Health Matrix. As we explain in the article, the rule is not authorized by the plain text of the PPACA, nor can it be justified by resort to the statute’s legislative history or congressional intent.

The most prominent critic of our position is Professor Tim Jost of Washington & Lee, who will also be testifying at the hearing. He criticized our position on the Health Affairs blog. Wednesday, Health Affairs posted our response. As we note, Jost has moderated and modified his position since he first critiqued our claim. More importantly, Jost fails to identify any statutory language or evidence from the legislative history that contradicts the plain text of the statute. Nor, for that matter, has the IRS. We’ll see if they have any more evidence in support of their position at the hearing.

The heart of Jost’s claim is that the PPACA’s supporters would have wanted tax credits to [...]

Continue Reading 0

Silver Linings in the Health Care Decision

This morning NRO posted an article I co-authored with Nathaniel Stewart on the limited doctrinal implications of the Supreme Court’s decision in NFIB v. Sebelius. The article is forthcoming in the July 30 National Review. Here’s how the piece beings:

The Supreme Court’s ruling in NFIB v. Sebelius was disheartening, especially after overturning the mandate seemed within reach. But despair is unwarranted. The negative consequences of the ruling for constitutional law are actually quite limited, and there is much in it upon which to build.

UPDATE: Just a quick update to clarify some points that I had hoped would be self-evident, but are not. First, to say there is a “silver lining” is to acknowledge that there is a cloud. In this case there is a significant one: the mandate was not struck down. The point of the essay, however, is that not all court losses are doctrinally equivalent. It is possible to lose a case like this in a way that opens the floodgates, and it is possible to lose a case like this on very narrow grounds that don’t upset settled doctrine all that much. In my view, a case like Gonzales v. Raich was the former. I never thought Raich had much chance to prevail (sorry Randy), but I had hoped for a very narrow, “marijuana-is-like-wheat” decision. What we got instead, in my view, were majority and concurring opinions with very expansive language.

NFIB, on other hand, is more of the latter. The fear was that if the mandate was upheld, the Court would blow through yet another potential limitation on use of the Commerce Clause or Necessary & Proper Clause. It did neither. For those who are disappointed the Court did not overturn Wickard, that was never on the table. The most [...]

Continue Reading 0

Will the Health Care Cases Cause Liberals and Conservatives to Switch Positions on the Role of the Supreme Court?

There are two basic positions in the American legal tradition about the power of courts to strike down legislative acts. The first position envisions the power of judicial review as an unambiguously positive thing. It is a Constitution we are interpreting, and we should strive to get it right. If that means that statutes must be struck down, then good: It means that the wayward legislature has strayed from fundamental law, and we are lucky that the wise judges can keep the other branches in check. The ideal judge should try to get it right, based on whatever understanding they have of what the Constitution truly means.

The second position envisions the power of judicial review as important but also potentially dangerous. We live in a democracy, and statutes represent majority will. Judges often confuse their view of the constitution and their view of sensible policy, which creates a significant danger that courts will overturn legislatures when they like the results rather than when the constitution truly demands it. Given that legislatures are majoritarian and the judiciary is not, we should be wary of judges using dubious theories to trump the will of the people. The ideal judge should approach judicial review with these institutional concerns in mind, and should rely on established doctrines such as stare decisis and canons of constitutional avoidance.

For the last half-century, these two positions had clear ideological affiliations. The liberal side and the Democratic party adopted the first view, and the conservative side and the Republican party adopted the second view There have been plenty of exceptions, of course, both as to specific people and specific cases. But those two positions framed the basic way that we have talked about the courts.

Why did the two sides take on these positions? I think the [...]

Continue Reading 0

New Leak Explains What Chief Justice Roberts Was Really Thinking in Health Care Cases (Although the Leak is Poorly Sourced)

A fascinating new leak from deep inside the Supreme Court has just surfaced on what Roberts was thinking when he switched his vote in the health care cases. Although the leak is poorly sourced and may not be reliable, I think it offers an important perspective if you’re trying to understand the switched vote (see explanation after the excerpt):

Sources with direct personal knowledge of Chief Justice Roberts’ decisionmaking in the Obamacare litigation revealed that he voted to uphold the Act in order to stay true to his principles rather than vote his political preferences in lockstep with his fellow conservatives.

According to sources, Roberts felt intense political pressure from conservative Justices, law clerks, media, politicians, and bloggers to vote to strike down Obamacare. “The entire Republican party opposed the Act,” sources tell ABC News, “and Roberts, as a loyal Republican, initially felt he had to go along.”

Roberts expressed early concern that departing from established precedent to adopted a novel “activity/inactivity” distinction was playing “gotcha” with the President’s signal legislative achievement. But Roberts was passionately opposed to the health care law on policy grounds, and he realized that he could “wipe it away” with his vote. Sources indicate that Obama’s vote against the confirmation of Chief Justice Roberts also played a role in the Chief Justice’s initial conference vote to strike down the Act. “It was payback,” our sources tell us.

After the initial vote, however, Roberts became “wobbly” after re-reading excerpts from his 2005 confirmation hearings. Roberts had stressed judicial restraint during his hearings. The often-overlooked point his comparing judging to umpiring was to note that the judges should not be a major force in political life: “Nobody ever went to a ballgame to see the umpire,” he had said. Roberts decided that his initial conference vote was

[...]
Continue Reading 0

New Poll Shows that Majority Disapproves of the Supreme Court’s Health Care Decision

A new Newsweek/Daily Beast poll of likely voters shows that 50% disapprove of the Supreme Court’s ruling upholding the Affordable Care Act as a whole, compared to 45% who support it. Survey respondents disapprove of the decision to uphold the individual health insurance mandate specifically by a larger 49-38 margin.

This is a significantly smaller anti-mandate majority than the 65-70% who said they wanted the Court to strike down the mandate in polls conducted before the decision was handed down. The difference may well be the result of the fact that a substantial minority of the public will tend to assume that any decision the Court makes is likely to be right unless they have very strong personal feelings on the subject.

Nonetheless, this result undermines the notion that the ruling will be a boost to the Court’s legitimacy or that its public image would have suffered had it ruled the other way. It’s unlikely that the Court’s legitimacy improved much in the eyes of anyone but committed liberals and legal academics.

To avoid misunderstanding, I will repeat what I have said many times before: public opinion about a court decision says very little about whether the ruling is right or wrong. Popular rulings are sometimes badly misguided (consider Korematsu v. United States, which was extremely popular at the time), and unpopular ones can be correct (the flag burning cases are a good example).

I do not believe that the Court should decide cases based on the perceived effects on its “legitimacy.” But for those who disagree, the individual mandate decision was not the great triumph that some imagine it to be. [...]

Continue Reading 0

Neal Katyal on the Federal Government’s “Pyrrhic Victory” in the Health Care Decisions

Georgetown law professor Neal Katyal is a highly respected liberal constitutional law scholar. He also argued several of the individual mandate cases for the Obama administration in the lower courts. In this recent New York Times op ed, he suggests that the result may well have been a “Pyrrhic victory” for federal power:

The obvious victor in the Supreme Court’s health care decision was President Obama, who risked vast amounts of political capital to pass the Affordable Care Act….

But there was a subtle loser too, and that is the federal government. By opening new avenues for the courts to rewrite the law, the federal government may have won the battle but lost the war….

The health care decision also contains the seeds for a potential restructuring of federal-state relations. For example, until now, it had been understood that when the federal government gave money to a state in exchange for the state’s doing something, the federal government was free to do so as long as a reasonable relationship existed between the federal funds and the act the federal government wanted the state to perform.

In potentially ominous language, the decision says, for the first time, that such a threat is coercive and that the states cannot be penalized for not expanding their Medicaid coverage after receiving funds….

This was the first significant loss for the federal government’s spending power in decades….

Of equal concern is the court’s analysis of the constitutionality of the individual mandate. While the court upheld the mandate, it did so by rejecting the federal government’s claim that it was regulating commerce.

Obviously, Katyal and I disagree on the merits of the two cases. For example, I think he is wrong to suggest that “until now, it had been understood that when the federal government [...]

Continue Reading 0

National Review Symposium on the Health Care Decisions

For those who have not yet had their fill of commentary on yesterday’s decisions, the National Review website has this symposium which includes contributions from co-blogger David Kopel and myself, among other (mostly conservative and libertarian) commentators. My own piece is here:

Thursday’s 5–4 decision upholding the individual mandate is a painful setback, but also a partial vindication for those of us who worked to get the mandate struck down. Chief Justice Roberts’s opinion for the Court actually rejects the federal government’s most important arguments for the mandate: that it is authorized by the Commerce Clause and the Necessary and Proper Clause. It also reaffirms the need to impose limits on federal power and emphasizes that Congress does not have the authority to impose whatever mandates it wants. Yet Roberts then snatched defeat from the jaws of victory by ruling that the mandate is constitutional because it is a “tax….”

Fortunately, Thursday’s closely divided decision is not the end of the debate over the scope of federal government power.

[...]
Continue Reading 0

Prof. Michael McConnell on the Spending Clause Holding in the Health Care Law Case

Prof. Michael McConnell (Stanford) passes along the following:

The Supreme Court’s Spending Clause holding, which commanded seven (!) votes, may be the most important aspect of yesterday’s health care decision, from the perspective of constitutional federalism. For the first time, the Court has held that the federal government may not use the threat of withdrawal of funds to force a state to adopt federal policies. This is a big deal. Even at the high point of the Federalism Blip (a/k/a “Federalism Revolution”) of the Rehnquist Court, it appeared that the Spending Clause would go unchecked. That was the message of South Dakota v. Dole and New York v. United States.

But the NFIB Court’s treatment of the issue is anything but crisp and clear. The Court framed the issue as whether a state has “a legitimate choice whether to accept the federal conditions in exchange for federal funds.” That question led the Court to rely a series of shades-of-grey distinctions: (1) the size of the grant that would be withdrawn (distinguishing between the 5% of federal highway funds at stake in Dole and the full amount of Medicaid funding here); (2) whether the newly imposed conditions make the law “in reality a new program” rather than a “modification” of the old; (3) whether the states are threatened with loss of “existing” funding or merely new sources of funding; and (4) whether the attached conditions are ones that “govern the use of the funds” or instead “take the form of threats to terminate other significant independent grants . . . as a means of pressuring the States to accept policy changes.” These considerations have a certain common sense to them, but the line-drawing problems are likely to prove intractable.

This area of constitutional doctrine could profit from serious thought.

Let me

[...]
Continue Reading 0

Initial Thoughts on the Health Care Ruling

The full set of opinions, with the syllabus, total 193 pages. I’m not sure if that’s a record, but it’s up there.

The primary dissent is a joint dissent by all four dissenting justices. This is unusual. Their dissent rejects both the individual mandate and the Medicaid expansion. Because these two provisions are central to the act, the dissenters would invalidate the law in its entirety.

Chief Justice Roberts rejects the Commerce Clause and Necessary & Proper Clause rationales for the mandate even though doing so would not seem to be necessary for the result. If the mandate may be upheld on taxing power grounds, why reach these clauses? One possible answer is that the Chief Justice embraces a constitutional avoidance rationale for construing the mandate as a tax (similar to what he did with the Voting Rights Act in NAMUDNO). Showing the constitutional problems with the mandate is thus necessary to justify the construction the Chief offers of the Act.

This opinion reaffirms that the Chief Justice is, in many respects, a conservative minimalist. This opinion, combined with others we’ve seen this term, is revealing how the Chief Justice and Justice Alito differ. The Chief is more minimalist in his approach and more deferential to federal power (save on the First Amendment, where Justice Alito seems more deferential).

Holding the mandate exceeds the scope of the Commerce and Necessary and Proper Clauses poses no threat to any other existing federal program or law that was not already in jeopardy. That is, this holding does not narrow these powers. Rather it reaffirms their limits.

Holding that it would be unconstitutional to terminate existing Medicaid funds to states that refuse to go along with the Medicaid expansion is quite significant, particularly as seven justices joined this result. While the holding here [...]

Continue Reading 0

No Health Care Case Today, but Several Interesting Decisions

The Court held that Arizona’s SB1070 is mostly preempted by federal law in Arizona v. United States; interpreted the Eighth Amendment so that it prohibits mandatory life in prison without parole sentences for juvenile homicide offenders in Miller v. Alabama. Unsurprisingly, the Supreme Court also summarily reversed the Montana Supreme Court in a single paragraph in the Citizens United replay case, American Tradition Partnership v. Bullock. [...]

Continue Reading 0

The Plan for Posts and Comment Threads When the Health Care Cases Are Decided

It’s likely that the health care cases are going to come down either tomorrow (Monday) or more likely later in the week, such as Wednesday or Thursday. We’re expecting a lot of posts and a lot of comments when the cases come down. The high likelihood of lots of posts on the mandate cases from the VC bloggers creates the possibility that it will be hard for commenters to know where to comment: We may end up with many different comment threads on many different posts that are all debating the same range of topics.

To help commenters find the relevant discussions, we’ll plan to have a few dedicated posts for commenting on various aspects of the decisions. For example, we’ll probably have one thread to comment on the majority opinion(s); another thread to comment on the dissent(s); etc. Our goal in setting up these comment threads is not to force commenters to comment in one place or another; we’re not going to monitor it or enforce any particular rules beyond our usual comment policy. Rather, we’re just hoping that a little organization might help commenters know where to comment and help readers know where to go to read relevant threads. It may not work, but we figured we would let you know about the plan to help you understand what we’re thinking. [...]

Continue Reading 0