Archive | Individual Mandate

Upcoming Heritage Foundation Event on Our Book A Conspiracy Against Obamacare

On January 7, co-bloggers Randy Barnett, Orin Kerr, and I will be speaking at an upcoming event at the Heritage Foundation in Washington, DC on our recently published book A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case, which details ours and the VC’s role in developing the arguments in the Supreme Court’s Obamacare decision (the book is also coauthored with Jonathan Adler, David Bernstein, and David Kopel). The book’s editor, Trevor Burrus of the Cato Institute, will also speak at Heritage.

The event will be held on from 12 to 1 PM. More information, including how to RSVP is available here.

NOTE: This event has been rescheduled from December 10, when it was wiped out by a “snowstorm” that shut down most of the DC area, despite the fact that there was only about 1 inch of snow. We hope to avoid a repeat on January 7! [...]

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Upcoming Event on A Conspiracy Against Obamacare

Co-bloggers Randy Barnett, Orin Kerr, and I will be speaking at an upcoming event at the Heritage Foundation in Washington, DC on our recently published book A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case, which details ours and the VC’s role in developing the arguments in the Supreme Court’s Obamacare decision (the book is also coauthored with Jonathan Adler, David Bernstein, and David Kopel). The book’s editor, Trevor Burrus of the Cato Institute, will also speak at the Heritage event.

The event will be held on December 10, from 12 to 1 PM. More information, including how to RSVP, here.

And see here for a review of the book by constitutional law scholar Rob Natelson. [...]

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The Impact of the Volokh Conspiracy on the Obamacare Litigation

Part of my concluding essay in my new book, A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case (coauthored with VC co-bloggers Randy Barnett, Jonathan Adler, David Bernstein, Orin Kerr, and David Kopel) deals with the impact of the VC and the blogosphere on the case. Here is an excerpt:

What role did the Volokh Conspiracy play in the legal battle over Obamacare? It is easy to identify two polar-opposite views on the subject: that our influence was decisive, and that it made no real difference at all. A March 2012 article in the Atlantic claimed that “[b]logs — particularly a blog of big legal ideas called Volokh Conspiracy — have been central to shifting the conversation about the mandate challenges.” On the other hand, Yale Law School Professor Jack Balkin argues that “the single most important factor in making the mandate opponents’ constitutional claims plausible was strong support by the Republican Party, including its politicians, its affiliated lawyers, and its affiliated media.” The support of the GOP was the main factor giving credence to a position that was “in the view of most legal professionals and academics, simply crazy.”

In my view, the truth is somewhere in between. Balkin’s emphasis on the role of the GOP has considerable validity. If Obamacare and the individual mandate had enjoyed broad bipartisan support, it is highly unlikely that the Supreme Court would have even come close to striking them down….

But such political factors are only a partial explanation of what happened. We should remember that the ACA was far from the only Obama policy that was bitterly opposed by the GOP. Republicans were just as strongly united in opposition to other administration initiatives such as the 2009 stimulus bill. At least with respect to the stimulus, there was

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Upcoming Josh Blackman Presentation on his book Unprecedented at George Mason University School of Law

This Wednesday from 5 to 6 PM, South Texas College of Law Professor Josh Blackman will be doing a presentation on his book Unprecedented: The Constitutional Challenge to Obamacare at George Mason University School of Law. In addition to being a highly successful young legal academic, Josh is also a prominent blogger, and a GMUSL graduate.

The event is sponsored by the GMU School of Law Students for Liberty (for which I am the faculty adviser), and will take place in Hazel Hall, Rm. 121. I will briefly comment on Josh’s book after his presentation, and he will have an opportunity to reply. I reviewed the book here. Although I have several disagreements with Josh’s analysis of the case, his book is a great read and is the closest thing to a definitive blow-by-blow account of the Obamacare litigation that we have so far. [...]

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Book Signing at the Federalist Society National Lawyers Convention

Next Friday, November 15, from 11 to 12 AM, I will be signing copies of my recently published books Democracy and Political Ignorance: Why Smaller Government is Smarter and A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case, at the Federalist Society National Lawyers Convention, in the main promenade of the hotel hosting the event. Both books will be available for sale at a discounted price.

A Conspiracy Against Obamacare is coauthored with five of my VC co-bloggers (Jonathan Adler, Randy Barnett, David Bernstein, Orin Kerr, and David Kopel), and some of them are likely to be around as well. If you are going to be at the convention and are interested in getting your book signed, or just want to come by to talk about the books, I hope you will drop by. [...]

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Why the Obamacare Case May not be “Settled Law”

Indiana University law professor Gerard Magliocca has an excellent Washington Post column on why the Supreme Court’s decision largely upholding the constitutionality of Obamacare may not be fully “settled law”:

The Affordable Care Act was passed by Congress, signed by President Obama, upheld by the Supreme Court and reconfirmed by the president’s reelection. Many of its provisions have gone into effect. As Democrats have taken to saying, it is the law of the land.

But contrary to what the president suggested in the Rose Garden this past week, that does not mean Obamacare is “settled, and it is here to stay.” And it is not illegitimate for Republicans to use every lawful means at their disposal to stand in its way…

Lawyers use the term “settled law” to describe court decisions that clearly establish a rule or a doctrine. Yet settled law also refers to legal actions that are accepted by society. Consider two of the most famous Supreme Court decisions: Brown v. Board of Education, which desegregated public schools, and Roe v. Wade, which created the constitutional right to have an abortion. Both of these cases are “the law of the land.” They are binding on all courts in the United States. Only one of them, though, is settled in the broader sense of that phrase. It is perfectly acceptable for politicians, judges and ordinary citizens to attack Roe and call on the Supreme Court to overturn it. It is totally unacceptable to criticize Brown in 2013.

A statute or court opinion becomes settled law when there is a broad consensus that it is just.

Gerard enumerates a wide range of reasons why the Supreme Court’s ruling in NFIB v. Sebelius falls short of being fully settled. But the core insight is that there is no bipartisan [...]

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Is there a Generational Divide over “Judicial Restraint” Between Reaganites and Libertarians?

Various commentators such as Garrett Epps, Mark Tushnet, and recent guest-blogger Josh Blackman argue that there is a generational divide among right of center jurists between Reaganite advocates of “judicial restraint” and later, more libertarian figures who are less willing to defer to legislatures and more eager to strike down laws they consider unconstitutional. They argue that this divide is exemplified by the the Supreme Court’s decision in NFIB v. Sebelius, where Chief Justice John Roberts voted to uphold the individual health insurance mandate as a tax, while other conservative justices voted to strike it down. As Epps puts it, Roberts voted the way he did because “his is the conservatism of the 1980s rather than the new, more aggressive version minted for the Age of Obama.” As a veteran of the Reagan-era Justice Department, Roberts supposedly imbibed the ideology of judicial restraint, from which later conservatives have departed.

I. Federalism and Reagan’s Judicial Appointees.

This thesis fundamentally misconceives the dominant constitutional vision of the Reagan administration and most of the jurists associated with it. In the individual mandate case, both of the actual Reagan appointees still on the Court – Justices Antonin Scalia and Anthony Kennedy – voted to strike down the law. If they had still been on the Court, Reagan’s two other appointees, Sandra Day O’Connor and William Rehnquist (whom Reagan promoted to Chief Justice), would likely have voted the same way, based on their longstanding advocacy of strong judicial enforcement of limits on federal power and their dissents in Gonzales v. Raich (in which case Scalia and Kennedy voted to uphold the law).

Reagan also nominated numerous leading libertarians and pro-federalism conservatives to the lower courts, including such well-known libertarian and libertarian-leaning jurists as Alex Koziniski, Douglas Ginsburg, Stephen Williams, Jerry Smith, and [...]

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New Books on the Obamacare Case

A little over a year has passed since the Supreme Court’s momentous decision in NFIB v. Sebelius. Not surprisingly, there is still no consensus on what the Court got right, what it got wrong, and what the long term significance of the case will be. But several interesting books about the case have just been published or are forthcoming in the next few months. And I suspect there are many VC readers who might be interested in some or all of them. Here are my thoughts on them.

I. Josh Blackman, Unprecedented.

For readers who want a blow-by-blow account of the litigation and its history, you can’t beat Josh Blackman’s Unprecedented: The Constitutional Challenge to Obamacare. Blackman – a law professor at South Texas College of Law and prominent legal blogger -interviewed over 100 participants in the case on both sides, and he does a great job of explaining each side’s legal, political, and public relations strategy. The book also does a good job of presenting most of the key legal arguments in a form accessible to nonexperts.

I do have some quibbles with the book. For example, I think that Blackman pays too little attention to the Necessary and Proper Clause issues in the case, which scholars as varied as Andrew Koppelman (discussed below), co-blogger Orin Kerr, and myself all believed was the federal government’s strongest argument. Chief Justice Roberts’ conclusion that the individual mandate was not “proper,” even if it was “necessary” may be one of the most significant aspects of the Supreme Court’s decision. In addition, while Blackman’s account is a useful corrective to claims that Solicitor General Donald Verrilli badly botched the case for the government, I think he goes too far in portraying him as a brilliant legal strategist who foresaw [...]

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The First Anniversary of the Obamacare Decision

Today is the first anniversary of NFIB v. Sebelius, the Supreme Court’s controversial decision in the Obamacare case. It is still too soon for us to fully appreciate the long-term impact of the ruling. We are also still far from reaching any kind of consensus about the correctness of the Court’s decision.

For the moment, however, I’m sticking with the assessment I made in this SCOTUSblog post written on the day the decision was announced:

Today’s 5-4 Supreme Court decision upholding the individual health insurance mandate is an extremely frustrating result for those of us who argued that the mandate is unconstitutional. One might even call it taxing. The plaintiffs came about as close as one can to winning a major constitutional case without actually winning it. It is the legal equivalent of losing the World Series after leading in the bottom of the ninth inning in the seventh game. It is not a happy day for supporters of limited government.

Yet the Court also offers us a measure of hope and vindication. A majority of the justices rejected claims that the mandate is authorized by the Commerce Clause and Necessary and Proper Clause. That has little immediate impact, but bodes well for the future….

As the close 5-4 division in the Court shows, the justices remain deeply divided on federalism issues. Both Chief Justice Roberts’ opinion and the powerful four-justice dissent reaffirm the need to enforce limits on congressional authority. And both accept all or most of the main constitutional arguments against the mandate. The latter will constrain future mandates imposed under the Commerce and Necessary and Proper Clauses. No one can any longer say that the case against the mandate was a sure loser that could only be endorsed by fringe extremists or people ignorant of constitutional

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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. [...]

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Why Did Law Professors Misunderestimate the Lawsuits against PPACA?

I quite enjoyed reading David Hyman’s new article of this title. It vividly illustrates a point that I tried to make three weeks ago at the Intellectual Diversity Conference at Harvard Law School (Panel 2 – 47:00) — which is that the liberal echo chamber of elite law schools has made them startlingly poor at predicting and analyzing what arguments will actually succeed in American courts. (See also Randy’s thoughtful discussion of this topic.) Hyman’s piece is exactly right, I think, and it is also breezily and stylishly written. Here is the abstract:

Almost without exception, law professors dismissed the possibility that the Patient Protection and Affordable Act Act (“PPACA”) might be unconstitutional — but something went wrong on the way to the courthouse. What explains the epic failure of law professors to accurately predict how Article III judges would handle the case? After considering three possible defenses/justifications, this essay identifies five factors that help explain the erroneous predictions of our nation’s elite law professors, who were badly wrong, but never in doubt.

Download Hyman’s article here. [...]

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My Review of Einer Elhauge’s Obamacare on Trial

The Liberty Law Blog recently posted my review of Harvard Law Professor Einer Elhauge’s book Obamacare on Trial, which was possibly the first academic book on the Obamacare litigation published by a legal scholar since the Supreme Court issued its decision in NFIB v. Sebelius. Elhauge is a topnotch scholar, and his book makes some interesting points in defense of the constitutionality of the individual health insurance mandate. But it’s not as strong as it could have been had he been able to address some key issues in greater depth:

Harvard Law Professor Einer Elhauge’s book Obamacare on Trial is a useful and sometimes insightful statement of several arguments in defense of the mandate. It is impressive that Elhauge managed to get the book in print just a couple months after the Court’s decision came down on June 28, 2012. But, perhaps because of the haste with which it was published, the book fails to adequately address some key issues, and likely will not be persuasive to those not already inclined to agree with Elhauge’s conclusions….

Elhauge’s most distinctive contribution to the debate over the mandate was his repeated invocation of two 1790s laws that, he argues, provide precedents for upholding the individual mandate as an exercise of the commerce power: The 1792 Milita Act, which required militia members to possess muskets and other military equipment; and the 1798 Act for the Relief of Disabled and Sick Seamen, which required owners of American ships arriving from foreign ports to a withhold a part of their seamen’s wages and pay the money into a government-administered fund for the “temporary relief of sick and disabled seamen….”

This is an interesting thesis and Elhauge defends it well. But, ultimately, it flounders on the many clear differences between the two 1790s acts

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Comstock, Bond and Predictions About the Individual Mandate Case

In his recent response to Randy Barnett, co-blogger Orin Kerr argues that previous precedent, especially the Supreme Court’s 2010 decision in United States v. Comstock justifiably led many observers to expect that the Court would readily uphold the individual health insurance mandate, and that its failure to do so under the Commerce and Necessary and Proper Clauses was a major change from Comstock and other prior precedents.

I agree that Comstock was a very broad interpretation of federal power in some respects, and I believe it was wrongly decided. Yet, even at the time Comstock was decided, it was easy to find crucial differences between that case and the individual mandate case. In a post written on the day that Comstock came down and in an article about Comstock published in the fall of 2010, I pointed out two such distinctions. First, Comstock endorsed a broad interpretation of the meaning of “necessary” in the Necessary and Proper Clause, but said nothing about the meaning of “proper.” The challenge to the mandate was primarily based on the idea that it was “improper” rather than unnecessary. Second, in upholding the law at issue in Comstock, the Court relied in part on a five-factor test that, when applied to the mandate mostly cut against the federal government. In my article (pg. 266), I also noted the possibility that the inclusion of the five factor test in the opinion may have been the price that Chief Justice John Roberts forced the four liberal justices to pay for casting the decisive fifth vote in favor of the majority opinion (Justices Alito and Kennedy concurred in separate opinions that outlined much narrower visions of the scope of federal power).

These distinctions were, in fact, exactly the ones relied on by Chief Justice Roberts in [...]

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Here Comes “Mandate Plus”

The point of the individual mandate was to counteract the adverse selection problem caused by community rating and the requirement that insurance companies issue insurance policies without regard for preexisting conditions. The mandate — or, as we now know it, the tax on being uninsured — provides an incentive for younger, healthier (and less costly to insure) to obtain health insurance. The problem, as I’ve noted before, is the size of the penalty is way too small to achieve its desired effect. While the penalty will have some effect on the margin, it will not have a dramatic effect because, for many individuals, the penalty is less than the cost of obtaining a qualifying insurance policy (a gap that only grows as many PPACA provisions take effect and premiums rise).

What to do? The easiest thing to do would be to increase the size of the penalty. Yet in upholding the penalty as a tax, Chief Justice Roberts also tied Congress’s hands. While there may be room to increase the penalty somewhat, Congress can’t increase the cost it too much, lest it no longer qualify as a “tax.” Should the penalty exceed the cost of a qualifying health insurance plan, it would lose some of the characteristics that enabled Roberts to deem it a tax.

Insurance companies would love a larger tax penalty, but getting something like that through Congress could be quite difficult. So they’ve turned to the Administration. As Politico reports, insurance companies are urging the Department of Health and Human Services to adopt other measures to penalize those who fail to obtain health insurance and encourage broader enrollment.

The individual mandate penalties will be pretty weak as they are phased in over two years — only $95 when they start in 2014, much less

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The Uniformity Clause – Another ObamaCare Challenge?

In NFIB v. Sebelius the Supreme Court upheld the individual mandate penalty as a constitutional exercise of the federal taxing power. Although little of the briefing (and even less of the oral argument) considered the question, the Court concluded the penalty did not constitute a “direct tax.” This conclusion was necessary to sustain the penalty as a tax because direct taxes must be apportioned among the states by population. But if the penalty is not a direct tax, that does not mean it is free from constitutional defect. As David Rivkin and Lee Casey write in today’s WSJ, the Uniformity Clause of Article I, Section 8 could provide the basis for another attack on the penalty. They write:

If the mandate is an indirect tax, as the Supreme Court held, then the Constitution’s “Uniformity Clause” (Article I, Section 8, Clause 1) requires the tax to “be uniform throughout the United States.” The Framers adopted this provision so that a group of dominant states could not shift the federal tax burden to the others. It was yet another constitutional device that was simultaneously designed to protect federalism and safeguard individual liberty.

The Supreme Court has rarely considered the Uniformity Clause’s reach, but it cannot be ignored.. . . And although the court has upheld as “uniform” taxes that affect states differently in practice, precedent makes clear that a permissible tax must “operate with the same force and effect in every place where the subject of it is found,” as held in the Head Money Cases (1884). The ObamaCare tax arguably does not meet this standard.

ObamaCare provides that low-income taxpayers, who are nevertheless above the federal poverty line, can discharge their mandate-tax obligation by enrolling in the new, expanded Medicaid program, which serves as the functional equivalent of a tax

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