But although the Democratic pro-ACA appellants cannot have been encouraged by the tone and scope of yesterday’s questioning, it remains a giant leap further ahead to envision a ruling that would overturn the entire ACA on nonseverable constitutional grounds. That’s just too much of a stretch, under standard severability analysis, to argue that the congressional findings of fact in 2010 actually intertwined the individual mandate with much more than a limited set of insurance-coverage-related ACA provisions (guaranteed issue, adjusted community rating, and perhaps minimum essential benefits at most). And even if the Fifth Circuit panel (or a later en banc review) decides to produce a scrambled mess, the Supreme Court and its chief umpire John Roberts (who has a tight strike zone for ACA legal challenges) remain poised to clean up Humpty Dumpty.
Last week, the Department of Justice surprised many by reversing its position on the Affordable Care Act—stating that it agrees with U.S. District Judge Reed O’Connor that the ACA is unconstitutional, and won’t defend the law. Judge O’Connor’s December 2018 decision in Texas v. United States held that because the tax penalty that enforced the individual mandate had been reduced to $0 in Congress’s 2017 tax reforms, the rest of the ACA could not stand. The House of Representatives, along with several states, has intervened in the case to defend the ACA. Joining host Jeffrey Rosen to break down the case and the legal and constitutional arguments on both sides are ACA experts Abbe Gluck of Yale University and Tom Miller of the American Enterprise Institute.
If The Court Strikes Down Obamacare, How Bad Would That Be? – Goodman Institute for Public Policy ResearchApril 5, 2019
The Trump administration has decided to challenge the constitutionality of the Affordable Care Act (Obamacare) in court. Some Republicans in Congress and even some in the administration resisted this decision. Critics assume that if there is no Obamacare, we would revert to the pre-Obamacare health system. If so, how bad would that be?
“The Affordable Care Act touches the lives of most Americans. Some 21 million could lose health insurance if the Trump administration were to succeed in having the law ruled unconstitutional.”
Editor’s note: this article summarizes what Obamacare critic John Goodman has characterized as “Democratic talking points.” That said, it is a useful codification (and quantification) of the key concerns the law’s defenders have about its potential demise.
AEI Event | Sense and severability: If one part of the Affordable Care Act is ruled unconstitutional, what is the proper remedy or resolution?February 16, 2019
On December 14, a federal district court in Texas ruled that the current version of the Affordable Care Act’s (ACA) individual mandate was unconstitutional. This is a link to two panel discussions on the often-overlooked law of severability and what might happen to the rest of the ACA if that finding holds up on appeal.The first panel discussed the current state of severability, how consistently it is applied, and whether there are possible alternatives that could improve it. The second panel discussed how severability law should be applied properly as this case advances. If an appellate court upholds the district court decision on constitutional issues, it still must decide what to do next. The primary options including striking down only the individual mandate (full severability), severing other functionally linked ACA insurance regulation provisions (partial severability), and finding that the entire ACA cannot be sustained.
For this year’s Rosenkranz Debate, we have been asked to debate the question: Lochner v. New York: Still Crazy After All These Years? It is my job to defend the “negative” position. My burden is not to establish that Lochner was correctly decided, but merely that it was not “crazy.” I intend to meet that burden and exceed it. I intend to show how Lochner v. New York was not at all crazy; in fact, it was a reasonable and good decision.
Substantial Shifts in Supreme Court Health Law Jurisprudence by Lawrence O. Gostin, James G. Hodge :: SSRNOctober 18, 2018
President Trump’s nomination of jurist Brett Kavanaugh to the U.S. Supreme Court presents significant, potential changes on health law and policy issues. If confirmed by the U.S. Senate, Kavanaugh’s approaches as a federal appellate court judge and scholar could literally shift the Court’s balance on consequential health policies. Judge Kavanaugh has disavowed broad discretion for federal agency authorities, cast significant doubts on the constitutionality of the Affordable Care Act, and narrowly interpreted reproductive rights (most notably abortion services). He has supported gun rights pursuant to the Second Amendment beyond U.S. Supreme Court recent interpretations. His varying positions related to consumer protections, environmental regulation, and antidiscrimination protections lend further to major concerns on the maintenance of settled positions of the Court on these and other critical health issues.
The only consistent characteristic of the Affordable Care Act (ACA) is its ability to generate litigation. The gift that keeps on giving for Obamacare opponents seems to defy common law doctrines curbing the practices of champerty and maintenance (frivolous lawsuits).
President Obama leaves behind a mixed legacy on constitutional issues — one that is likely to remain controversial for a long time to come. Its most dangerous element may be the precedents he set for unilateral presidential initiation of war. More positively, the President played an important role in the establishment of a constitutional right to same-sex marriage, and his Administration’s policies unintentionally led to litigation that resulted in stronger judicial protection for federalism, property rights, and religious liberties. Obama’s judicial appointments are notable for their impressive professional qualifications and strong support for liberal judicial ideology. The long-term constitutional impact of the Obama presidency remains to be seen.
Contrary to assurances and in violation of federal law, the Obama administration shielded lawmakers from an effective pay cut of up to $12,000 each by granting Congress several types of special treatment unavailable to the public. It deemed Congress eligible to participate in D.C.’s small-business exchange, though both federal and D.C. law prohibit it. That form of special treatment gave rise to another: It made Congress the only large employer in the country that can make tax-free contributions toward its employees’ exchange-plan premiums. The act of issuing those payments conflicts with other federal laws, and bestows yet another form of special treatment on Congress: Members of Congress and their staff are the only group of federal workers who receive FEHBP premium contributions for non-FEHBP coverage.