Both the House and Senate health care bills contain an unwelcome surprise for those whose current health care plans allow “flexible savings accounts” for out-of-pocket medical expenditures. FSAs enable people to spend pre-tax dollars on medical expenditures, including doctor visit co-pays and drug costs. Money is deducted from an employee’s paycheck, pre-tax, and placed in […]
Archive | Health Care
Does Congress Have the Authority to Enact a Health Insurance Mandate Using its Power to Tax?
Most defenses of the constitutionality of the health insurance mandate rely on Congress’ powers under the Commerce Clause, an approach I criticized here. Some, however, also claim that Congress has the power to enact it under the Tax and Spending Clause (e.g. – Jack Balkin), which gives Congress the power to To lay and collect […]
Are there Areas of Consensus Among Constitutional Law Scholars?
Orin’s follow-up to my post arguing that there is no expert consensus on the constitutionality of the health care mandate suggests that there are virtually no real areas of consensus among constitutional law scholars, and that “you can pretty much always find someone to say a controversial law is unconstitutional.” It is probably true that […]
The Myth of an Expert Consensus on the Constitutionality of an Individual Health Insurance Mandate
In an important recent speech, Senator Max Baucus claims that there is a broad consensus among legal scholars (that the individual mandate is constitutional. He claims that “those who study constitutional law as a line of work have drawn th[e] same conclusion” as congressional Democrats. Similar assertions have been made in parts of the liberal […]
The Constitutionality of an Individual Mandate — A Reply to Sen. Baucus
By Jonathan H. Adler on December 23, 2009 3:28 pm in Commerce Clause, Congress, Constitutional Theory, Health Care
Yesterday, on the Senate floor, Senator Max Baucus quoted my August 22 VC post on the constitutionality of an individual mandate. Specifically, he quoted the following passage: In this case, the overall scheme would involve the regulation of “commerce” as the Supreme Court has defined it for several decades, as it would involve the regulation […]
If You Like Your Health Plan, You Will NOT Be Able to Keep It
I like my employer’s health plan. Today I learned that under both the Senate and the House bills, I won’t be able to keep my plan. Both bills require reductions in health reimbursement benefits under my plan. Both the Senate and the House health bills slash a significant part of my employer’s health plan — […]
An Interesting Wrinkle in the Reid Bill Entrenchment Provisions
Over at NRO’s Bench Memos, Matt Franck points out that insofar as the Reid bill alters Senate rules in order to entrench some of the bill’s reforms, there may not have been enough votes for cloture on the bill. while cloture to end debate on legislation ordinarily takes “three-fifths of all the Senators duly chosen […]
Will States Challenge the “Nebraska Compromise”?
The AP reports several state attorneys general are looking into potential legal challenges to the health care bill (assuming it passes). The top prosecutors in seven states are probing the constitutionality of a political deal that cut a funding break for Nebraska in order to pass a federal health care reform bill, South Carolina’s attorney […]
Constitutional suits against Obamacare
FoxNews reports that the Liberty Legal Institute and the Fund for Personal Liberty/10th Amendment Foundation are contemplating constitutional lawsuits against certain provisions of Obamacare. As various elected officials and public interest organizations consider their own litigation strategies, it would be helpful for them to know about how well the aforesaid organizations might present a constitutional […]
Future Amendments Are Out of Order
By Jonathan H. Adler on December 22, 2009 11:01 am in Congress, Government Transparency, Health Care
The Senate health care bill contains provisions that purport to prevent a future Congress from revising portions of the legislation my majority vote. Specifically, at pages 1019-1021, the bill requires a three-fifths vote in order to alter or repeal recommendations made by the Independent Medicare Advisory Board. The relevant language is below. As noted here, […]
Richard Epstein on the Reid Bill
While most of us have not had the time to peruse the Senate health care bill, much less analyse its various provisions, the University of Chicago’s Richard Epstein has already penned a sizable essay on why portions of the bill should be found unconstitutional. He summarizes: In effect, the onerous obligations under the Reid Bill […]
The Tanning Salon Excise Tax
In case you didn’t get a chance to read the Manager’s Amendment to the Senate bill yourself, all the way to the end, the way that your senators surely will, here’s one item of possible interest: (b) EXCISE TAX ON INDOOR TANNING SERVICES.— Subtitle D of the Internal Revenue Code of 1986, as amended by this […]
The Heart of America
The health care reform advocacy group Public Option Please sponsored a pro-public option art contest. Here is the winning entry. I suspect many health care reform supporters find this poster inspiring for the same reasons many health care reform opponents find it disconcerting. UPDATE: It appears the quote on the poster is actually the work […]
IWV Health Care Video Contest Entries
The Independent Women’s Voice is sponsoring a video contest on the problems with current health care legislation. Here are the three entries for which you can vote by posting your “vote” as a comment at YouTube page for each video (this link will take you to the IWVVoices YouTube page that links to all three […]
Senator Hatch & Stuart Taylor on the Constitutionality of an Individual Health Insurance Mandate
By Randy Barnett on December 14, 2009 10:00 am in Commerce Clause, Constitutional Theory, Health Care, Supreme Court
On Friday, Senator Hatch gave a major speech on the floor of the Senate on the unconstitutionality of a federal health insurance mandate that readers may find very interesting. Although the Senator favorably mentions my Heritage legal memorandum and introduced it into the Congressional record, his presentation of the constitutional problems with a mandate is […]