Health Care Cases (Obamacare)


The opinion in the Health Care Cases can be found at http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf.

Blog


A Mixed Bag: Michigan Federal Judge Grants Injunctive Relief in an HHS Mandate Challenge

• November 1, 2012 • 4:50 pm

Last evening, Judge Richard Cleland of the U.S. District Court for the Eastern District of Michigan granted an injunction against the HHS contraceptive mandate in Legatus v. Sebelius.  The order is here.  The case is a challenge to the HHS mandate that employers provide health insurance coverage of contraceptives and abortion-inducing drugs, and is brought by secular individual as well as companies seeking a religious-based exemption from the mandate on the grounds that providing such coverage would violate their Roman Catholic faith. Here is a brief outline of the order’s key findings and some commentary:

  1. In deciding whether the first plaintiff, Weingartz Supply Company, has satisfied the standing requirements, Judge Cleland declines to address whether corporations have religious free exercise rights.  However, the judge does extend free exercise protection further than other courts have in similar cases.  While other decisions cited by the judge looked to the corporation as a way to fulfill the owner’s religious goals in evaluating free exercise protection, here it’s sufficient that Daniel Weingartz (the corporation’s president) has a personal free exercise right and is defended through his company (pgs. 8-9).
  2. Regarding the standing of the second plaintiff, Legatus, the judge furthers the view of other courts in affording the government a good faith presumption that HHS and the president will keep their promise to “accommodate” other religious objectors (the only evidence of which at this time is a press conference by President Obama) and accordingly finds that Legatus’ injury is too hypothetical to qualify for relief—i.e., it cannot show a substantial burden on its exercise of religion.  (pg. 11).
  3. As a further clarification to what constitutes a substantial burden, the judge rightly notes that “courts often simply assume that a law substantially burdens a person’s exercise of religion when that person so claims” (pg. 13).  Accepting that standard, finds that a substantial burden on the plaintiffs’ religious free exercise here.
  4. When discussing whether the government possesses a compelling interest sufficient to substantially burden religious exercise, Judge Cleland notes an important point lost in the general public debate: it’s not enough that the government has a compelling interest in broadening contraceptive access; it needs to have a compelling interest in forcing the individual plaintiff to violate his conscience to achieve that objective.   As his decision states: The court must look “beyond broadly formulated interests justifying the general applicability of government mandates and scrutinize[] the asserted harm of granting specific exemptions to particular religious claimants.” (pg. 19). In the course of that argument, the government tips its hand at the likely scope of whatever “accommodation” the Obama administration would likely reach:

    The Government argues that providing a religious exemption to a secular, for-profit company would open the door for owners of other secular businesses to request religious exemptions to federal laws under RFRA, thereby essentially imposing the owners’ religious beliefs on their employees who may not share their owners’ convictions. (pg. 20).

    If that turns out to be the Obama administration’s “redline” when it comes to crafting an accommodation, it is difficult to see how the administration’s “accommodation” will safeguard the religious exercise rights of individual Americans (as opposed to religious entities), as well as individual American businesses.  As I’ve noted here, there is appellate-court case law going back to at least 1898 suggesting that entities unaffiliated with religious organizations have Free Exercise rights.

  5. Judge Cleland makes an interesting point at page 21 when discussing the Government’s compelling interest. He says that it would be wise for the plaintiffs to show how their employees can get access to the “full-range of FDA-approved contraceptives” without their company’s participating in the cost-sharing.  The judge compares this inquiry to how the Supreme Court in Wisconsin v. Yoder downplayed the state’s compelling interest in compulsory education because the Amish had vocational training.  This raises some interesting issues.Even if the government has a compelling interest in the marginal expansion of already broad contraceptive access (though as the Supreme Court said in Brown v. Entertainment Merchants Association, “the government does not have a compelling interest in each marginal percentage point by which its goals are advanced”), the analogy to Yoder here does not seem that strong.  The Court in Yoder cited the Amish use of vocational schools as a way to refute the government’s argument that the Amish families were fostering ignorance by refusing to send their children to compulsory school.  A vocational school, by its very purpose, is not going to expose children to the “full range” of government-mandated curricula from a public school.  Thus the analogy made by Judge Cleland here when he suggests the plaintiffs explain how its employees can get access to the “full range of FDA-approved contraceptives” seems unnecessary.  If one works for a company where the ownership has a religious-based exemption to something, the fact that such an exemption would not provide the same type of benefits that a non-objecting entity possesses is to be expected, not criticized.  This is why the Religious Freedom Restoration Act analysis has a “least restrictive means” component, which I discuss below.  It is not the challengers’ burden to show parity with the opportunities afforded by non-objecting entities.  Rather it’s the government’s burden to show that there isn’t a lesser restrictive way to achieve its objective without putting the objector in a religiously compromising position.
  6. In his discussion of “least restrictive means,” Judge Cleland makes many thoughtful points.  He notes that the cost to the plaintiffs in violating their consciences is “provably substantial,” and goes on at length to dismiss a formulation of the “least restrictive means” test that would functionally exempt the Government from having to show it (pg. 22-23).  He  then explains why he thinks that one of the Plaintiffs’ suggested lesser-restrictive means, the government dispensing free birth control, is logistically impractical.  Yet the judge then concedes that neither the government nor the plaintiffs will likely meet their burden on this point at trial (pg. 25).Missing from this discussion is any reference to the Newland decision this summer in the U.S. District Court for the District of Colorado, which granted injunctive relief to HHS mandate challengers.  There, the government made a comparable argument regarding the logistical hassle of its dispensing free contraceptives, but the argument was rightly dismissed by the District Court on several grounds.  One was that the government already provides free birth control to women, and the existence of such programs cuts against the notion that it would be unfeasible for the government to expand what it already does.  As the plaintiffs there noted, the administrative concern cited by the government re-casts the government’s compelling interest: no longer is it about spreading contraceptive access through cost-sharing (as such an interest is certainly met if the government directly provides the contraceptives), it’s now about the government’s administrative convenience.  The court’s other ground for dismissing the logistical hassle argument was that there were no facts suggesting that any new administrative inconveniences imposed on the government from dispensing free contraceptives would undermine its interest in expanding contraceptive access.  It’s curious that any reference to Newland is missing from Judge Cleland’s swift dismissal of this lesser restrictive alternative.
  7. Ultimately, the judge balanced the harms of granting or denying injunctive relief in favor of the plaintiffs based on their making some showing, though not a strong showing, of success on the merits.  The Judge stressed that not granting the injunction would be far more damaging to the suit going forward since denying the injunction would functionally operate as a loss on the merits for the Plaintiffs (pg. 28).  Though the Judge Cleland’s decision is lacking in some respects, the tenor of the order is sufficiently evenhanded that the plaintiffs could prevail on the merits.

More on EPA’s Coercion of the States

• August 8, 2012 • 9:13 am

An astute reader argues, contrary to my earlier position, that coercion of the states is always unconstitutional because it always amounts to an indirect “commandeering” of the state’s legislative or executive arm.  With respect to Texas’s lawsuit against EPA challenging the agency’s command that the states incorporate greenhouse gas provisions into their state implementation plans, he argues a clear-cut case of commandeering.  The states are told to change how they administer the Clean Air Act’s permitting program, and are threatened with a revocation of their entire permitting authority (as opposed to some smaller portion thereof) if they don’t act.  A revocation of their permitting authority is no doubt coercive.  And that coercive result EPA uses as leverage to get the states to amend their plans.

I fully agree with the reader that if EPA has no authority to require the states to amend their implementation plans, or to amend them on a very expedited basis, then EPA’s actions are unconstitutionally coercive.  But of course this example doesn’t contradict my earlier position that coercion per se is not problematic, and only becomes so if the coercion is being used to achieve an end (amendment of the implementation plans) that EPA couldn’t achieve directly.

Yet I believe that the reader would go further to argue that even if EPA can under the statute require the states to amend their implementation plans to include greenhouse gases, and to do so on an expedited basis, the coercion and commandeering principles would forbid it because EPA is essentially forcing the states to act as federal surrogates.  With the caveat that South Dakota and NFIB were Spending Clause, not Commerce Clause, cases, I see the reader’s point.  Even if one assumes that EPA could legally and constitutionally impose a construction moratorium regardless of Texas’s implementation plan decision, the harm to federalism principles by conditioning that moratorium on Texas’s decision to administer the permitting program would still be considerable.  Texas cannot tolerate a construction moratorium, but if it accedes to EPA’s demands, then the electorate may seek to hold Texas responsible for a policy decision that really is from EPA.

NFIB v. Sebelius, Coercion, and the Unconstitutional Conditions Doctrine

• August 6, 2012 • 8:38 am

In NFIB v. Sebelius, the Supreme Court held that the Affordable Care Act would be unconstitutional if interpreted to condition the entirety of a state’s Medicaid funding on its decision whether to accept the Act’s expansion of Medicaid services.  The Court, through Chief Justice Roberts, explained that such a condition would impermissibly coerce the states and therefore exceed Congress’s power to spend the federal fisc on behalf of the general welfare.  In so holding, the Court distinguished its leading precedent in this area, South Dakota v. Dole, on the grounds that there the only funding at issue was a small percentage of federal highway funds, whereas here a substantial portion of the states’ budgets would be threatened.  The Court managed to uphold the Act by interpreting it as conditioning the receipt of new funds only on acquiescence to the Medicaid expansion.

Shortly after NFIB was decided, commentators noted that its coercion analysis might endanger other federal programs, such as the Clean Air Act.  Recently, attorneys for the State of Texas filed a notice of supplemental authority in a consolidated action in the D.C. Circuit Court of Appeals relying on NFIB to support its case.  The lawsuit challenges the Environmental Protection Agency’s decision to require the states to incorporate greenhouse gas limitations in their “state implementation plans.”  Under the Clean Air Act, a permit is required for the construction of, or significant improvements to, “major” emitting facilities, i.e., projects that will emit large amounts of air pollutants regulated under the Act.  Generally, these permits are issued by states pursuant to a state implementation plan that EPA has previously approved.  The trouble here is that EPA has required the states to update their plans to include permitting provisions for the reduction of greenhouse gas emissions, and several states, supported by industry, have balked.  Now, lawyers for Texas are arguing that NFIB’s coercion discussion supports Texas’s position that EPA cannot invalidate the state’s implementation plan and thereby preclude it from issuing permits.

I am not a Clean Air Act expert, but I see a significant problem with Texas’s use of NFIB(more…)

FedSoc SCOTUScast – Randy Barnett and Neal Katyal Discuss Obamacare

• July 16, 2012 • 11:10 am

On June 28, 2012, the Federalist Society organized a SCOTUScast (recording here) on the Affordable Care Act decision. Randy Barnett, the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, discussed the case with Neal Katyal, a partner at Hogan Lovells, professor at Georgetown Law Center, and former Deputy Solicitor General.

Barnett began by noting that the two most important provisions of the ACA at stake were the individual mandate and the Medicaid provision.  The former required that all Americans purchase health insurance as a means to compensate insurance companies for the costs that were being imposed upon them by various restrictions or various requirements–for example, guaranteeing community rating, which required that they issue policies for coverage for pre-existing conditions and that their rates adjusted accordingly.  The Medicaid provision, he explained, represented a substantial change in the program: Congress was going to provide considerable additional funding for new expanded Medicaid programs. It conditioned this new funding on states’ acceptance of the expanded program, but it also reserved the right to condition the funding for all existing Medicaid programs.  It was the entire funding condition that was challenged because it was alleged to be coercive toward the states.

Barnett said that the answers to this issues were not what anybody expected. (more…)

Debating Judicial Restraint: A Response to Somin and Whelan

• July 16, 2012 • 9:02 am

Ilya Somin and Ed Whelan have criticized my Public Discourse article on the healthcare decision, which discusses dueling conceptions of judicial restraint within the conservative legal movement. I’m grateful to both of them for their critiques and will try to respond to some of their comments.

Somin claims that I “argue that the individual mandate case represents a sea change in conservative attitudes to judicial review.” Against this, Somin contends that “there is a lot more continuity in both liberal and conservative attitudes towards judicial review than [Alicea and Orin Kerr] suggest” and that the conservative argument for “stronger judicial enforcement of constitutional limits on federal power….long predates Obamacare.

Specifically, Somin takes issue with my characterization of then-Justice Rehnquist’s role in the conservative legal movement’s founding during the 1970s. I note that Rehnquist was a proponent of an older view of judicial restraint, a view that emphasized deference to legislative majorities and set a high bar for unconstitutionality before striking down statutes. Somin cites many examples of Rehnquist acting to enforce limits on federal power, such as the so-called Federalism Revolution of the 1990s. In short, Somin writes, “[T]here is at least a 35 year history of leading conservative jurists urging strong judicial enforcement of limits on federal power.”

I do not disagree with much of what Somin says. How could one dispute that judicial conservatives have long objected to the expansion of federal power and favored a judicial response to this accretion of authority? No one with a passing familiarity of American constitutional history could contest these points, and I did not do so in my essay

It is equally undeniable that Chief Justice Rehnquist was willing to enforce limits on federal power, especially during the federalism cases of the 1990s. My claim was not that Rehnquist was averse to patrolling the boundaries of federal power. Even a Justice with a far more modest view of the judicial role than Rehnquist will encounter statutes that he or she thinks are clearly unconstitutional.

Nor did I argue that Rehnquist’s view of judicial restraint remained constant throughout his tenure on the Court. I wrote only about his role at the founding of the conservative legal movement in the 1970s, long before the Federalism Revolution of the 1990s. That is not to say that Rehnquist’s views changed dramatically from the 1970s through the 1990s, but I confined my observations of the Justice to his role at the beginning of the movement.

I do think that Rehnquist expressed a modest view of the judicial role during the 1970s, as his 1976 lecture on the “Notion of a Living Constitution” shows. That lecture repeatedly emphasizes the role of legislative majorities in our constitutional system and the comparatively minor domain of the federal judiciary. True, in his discussion of Chief Justice Marshall and judicial review, Rehnquist makes clear he thinks the judiciary has a responsibility to strike down unconstitutional laws, but the sense one gets from the lecture is that he has a less aggressive conception of judging in mind than Keith Whittington described in Constitutional Interpretation or than Randy Barnett has argued for in recent years.

Even if I were mistaken in describing Rehnquist’s jurisprudence, that would not undermine my point that the older view of judicial restraint was once dominant in the conservative legal movement. (more…)

Roberts’ Health Care Decision: Statesmanship, Not Jurisprudence

• July 12, 2012 • 1:04 pm

Just a few hours after the Supreme Court handed down its decision in NFIB v. Sibelius, I sent Washington Monthly a short post giving my instant reaction. My main purpose was, to be honest, to tell everyone that I had correctly predicted the Court’s decision. Sadly, I had previously failed to do so anywhere public, but just two days before the decision was handed down, I wrote to one of my graduate students, who was sure the Court would strike down Obamacare, “my prediction is that Roberts writes the opinion, and he upholds it on the taxing power. I know everyone thinks they strike it down, but I’m sticking to my guns that they don’t.” The lesson here is, for all the aspiring pundits reading this blog—always publish your predictions! If they’re wrong, no one will notice, and if they’re right, you’ll be able to prove your Nostradamus-like skills.

From the moment the Court took the case, I was telling everyone I could that no, the Court would not strike the law down, and that I anticipated that it would uphold it 7-2 or even 8-1. That said, my guess was also that the Court could not simply uphold it. I am a political scientist, not a lawyer or law professor, and the lens through which I view high-profile cases like this is pretty frankly political. My thought was that the political constraints on at least a sufficient bloc of conservatives to uphold the decision were: a) Striking down the highest profile piece of legislation of the opposite party, directly, was simply unthinkable but; b) The group of conservatives who voted with the liberals had to provide something to their own side in the process. I wasn’t exactly sure what that “something” was, but I was sure that there would be something. (more…)

Roberts Was Wrong to Apply the Canon of Constitutional Avoidance to the Mandate

• July 11, 2012 • 8:36 am

In his ACA decision, Chief Justice Roberts concludes that the individual mandate can be sustained as an exercise of the taxing power, even though he concedes that it is read “more naturally as a command to buy insurance than as a tax.”  His key move is an application of the canon of constitutional avoidance, which he explains as follows: “The text of a statute can sometimes have more than one possible meaning. To take a familiar example, a law that reads ‘no vehicles in the park’ might, or might not, ban bicycles in the park. And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so.”

The Chief Justice’s account of the canon is accurate, but his application of it is exceedingly odd. The canon applies when a statute is ambiguous—when it can plausibly be read to mean two different things.  In the Chief Justice’s example, “vehicle” could be read to mean something like “device for transport,” which would include bicycles, or it could be read to mean “motorized device for transport” which would exclude them.  If including bicycles would violate the Constitution, then the canon of constitutional avoidance would counsel adopting an interpretation of “vehicle” that excludes them.  The statute includes an ambiguity about quite what it forbids, and the canon helps to resolve the ambiguity.

But the individual mandate is not ambiguous in the same sense that “vehicle” is ambiguous.  It is crystal clear what the mandate requires: get insurance or pay a certain amount to the IRS.  There is no alternative interpretation.  There is no marginal case, like bicycles, that is up for debate.  Whether it is called a “penalty” or a “tax”, the individual mandate has exactly the same legal consequences. Compare Oliver Wendell Holmes, Jr. in “The Path of the Law”:

If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict . . . . [And] from his point of view, what is the difference between being fined and taxed a certain sum for doing a certain thing? That his point of view is the test of legal principles is shown by the many discussions which have arisen in the courts on the very question whether a given statutory liability is a penalty or a tax.

Whether the individual mandate is called a “penalty” or a “tax,” it means what it means and requires what it requires.

So when the Chief Justice “interprets” the mandate to be a tax, this is not interpretation in the ordinary sense.  This is, in reality, an issue, not of statutory interpretation, but of constitutional characterization. (more…)

Health Care Decision Highlights Two Visions of Judicial Restraint, Two Eras of the Conservative Legal Movement

• July 10, 2012 • 10:31 am

I published an article today at The Public Discourse arguing that NFIB v. Sebelius highlights “two visions of judicial restraint, and two eras of the conservative legal movement.” I’ve excerpted a portion below, and you can find the full article here.

At the sprightly age of 57 and less than seven years into his term as chief justice, John Roberts looks like a man whom time has left behind. The reaction among legal conservatives to the Roberts opinion in National Federation of Independent Businesses v. Sebelius (the healthcare case) has been brutal. Many have accused the chief justice of exchanging the black robes of the jurist for the trappings of the politician. The chief justice is said to have “blinked” and “failed [his] most basic responsibility.” Noted originalist scholar Mike Rappaport strongly implied that Roberts is “both a knave and a fool.” The cataloguing could go on.

As much as these reactions reveal about differing views on a hotly contested question of constitutional law, they are at least as interesting because of what they say about the state of the conservative legal movement. (more…)

Video of FedSoc’s 2012 Annual Supreme Court Roundup with Ted Olson

• July 9, 2012 • 11:46 am

On July 6, 2012, former U.S. Solicitor General Theodore Olson delivered the Annual Supreme Court Round Up at The Mayflower Hotel in Washington, DC.

Featuring:

On July 6, 2012, in front of a packed audience in the Mayflower Hotel ballroom former solicitor general Ted Olson offered his take on the Supreme Court over the last year.  He began by noting how quickly liberal pundits went from predicting that irresponsible activist conservative justices would overturn Obamacare, to praising Chief Justice Roberts for his statesmanship and willingness to wisely rise above “law and ideology.”  Olson quoted CNN and New Yorker legal analyst Jeffrey Toobin, who, after the decision came down, rationalized it by saying that “in a constitutional storm any port will do.”  The former solicitor general then turned to the problem of the homogeneity of the court.  He pointed out that not a single justice served in public office, all but one served as an appellate judge, and that their backgrounds showed a tilt toward the northeast U.S.  Indeed, he said that four of the five boroughs of New York City were represented on the Court; he joked that presumably the next appointment will hail from Staten Island.  He also discussed the dominance of Harvard, Yale, and Princeton in the justices’ educations. (more…)

Hylton, the Excise Tax, and NFIB v. Sebelius

• July 6, 2012 • 4:30 pm

One aspect of the Court’s decision that hasn’t gotten as much play is its holding that the mandate-turned-tax is not a direct tax for purposes of Article I, section 9, clause 4. The Court relied on its holding in Hylton v. United States (1796), which upheld the constitutionality of a federal tax on carriages. Central to that decision was whether the carriage tax was a direct tax or an indirect tax, but included in that question was whether the tax was an excise tax.

Since the Court has shown renewed interest in Hylton and the original meaning of the taxation power, readers might find useful a forthcoming article I am publishing with my co-author and noted originalist scholar, Dr. Donald Drakeman, in the Pennsylvania Journal of Constitutional Law. The article is called “The Limits of New Originalism.” It looks at the Hylton case in detail and examines the original meaning of the excise tax, all as a way of making a broader point about originalist constitutional theory. (more…)

FedSoc Publications

Videos


Video of FedSoc’s 2012 Annual Supreme Court Roundup with Ted Olson

July 9, 2012

On July 6, 2012, former U.S. Solicitor General Theodore Olson delivered the Annual Supreme Court Round Up at The Mayflower Hotel in Washington, DC.

Featuring:

On July 6, 2012, in front of a packed audience in the Mayflower Hotel ballroom former solicitor general Ted Olson offered his take on the Supreme Court over the last year.  He began by noting how quickly liberal pundits went from predicting that irresponsible activist conservative justices would overturn Obamacare, to praising Chief Justice Roberts for his statesmanship and willingness to wisely rise above “law and ideology.”  Olson quoted CNN and New Yorker legal analyst Jeffrey Toobin, who, after the decision came down, rationalized it by saying that “in a constitutional storm any port will do.”  The former solicitor general then turned to the problem of the homogeneity of the court.  He pointed out that not a single justice served in public office, all but one served as an appellate judge, and that their backgrounds showed a tilt toward the northeast U.S.  Indeed, he said that four of the five boroughs of New York City were represented on the Court; he joked that presumably the next appointment will hail from Staten Island.  He also discussed the dominance of Harvard, Yale, and Princeton in the justices’ educations. (more…)

Healthcare Reform in the Supreme Court 4-17-12

June 8, 2012

The Iowa Lawyers Chapter hosted this event on April 17, 2012. Gregory Katsas is the co-lead counsel for the private parties challenging President Obama’s healthcare law, the Affordable Care Act, and argued in the Supreme Court on behalf of all respondents on the jurisdictional issue of whether the challenge is barred by the Anti-Injunction Act. Following the historic three days of oral arguments in the Supreme Court, Mr. Katsas presented his insider perspective on the oral arguments and the many legal issues involved.

Featuring:
–Hon. Gregory Katsas, Partner, Jones Day, Co-Lead Counsel for the Private Party Plaintiffs Challenging the Affordable Care Act and Former Assistant Attorney General for the Civil Division, U.S. Department of Justice
–Introduction: Mr. Samual P. Langholz, State Public Defender of Iowa and President, Iowa Lawyers Chapter

Iowa State Bar Association Headquarters
Des Moines, IA

Obamacare in the Supreme Court 3-20-12

March 21, 2012

The U.S. Supreme Court is now ready to hear oral argument in one of the most highly anticipated cases in the modern era, Florida v. U.S. Department of Health and Human Services, a consolidated series of challenges to the Patient Protection and Affordable Care Act. Our panel of experts will analyze the case and all issues before the Court, including discussion of the constitutionality of the individual mandate provision, severability, coercion and the Medicaid provision, and the implications of the Anti-Injunction Act. Please join us for what promises to be an important preview of these critical issues.

Featuring:
–Prof. Randy E. Barnett, Georgetown University Law Center
–Hon. Walter Dellinger, O’Melveny & Myers
–Prof. Neal K. Katyal, Georgetown University Law Center
–Mr. C. Kevin Marshall, Jones Day
–Moderator: Mr. Stuart Taylor, Jr., Contributing Editor, National Journal and Nonresident Fellow, Brookings Institution

National Press Club
Washington, DC

C. Kevin Marshall on the Most Powerful Argument Against ObamaCare’s Individual Mandate

March 20, 2012

On March 20, 2012, the Federalist Society’s Federalism & Separation of Powers Practice Group sponsored a panel discussion on “Obamacare in the Supreme Court.” The panelists were: Prof. Randy E. Barnett, Georgetown University Law Center; Hon. Walter Dellinger, O’Melveny & Myers; Prof. Neal K. Katyal, Georgetown University Law Center; Mr. C. Kevin Marshall, Jones Day.

In this video, C. Kevin Marshall explains what he sees as the most powerful argument against the individual mandate in The Patient Protection and Affordable Care Act.

Walter Dellinger on the Conservative Case for the Individual Mandate

March 20, 2012

On March 20, 2012, the Federalist Society’s Federalism & Separation of Powers Practice Group sponsored a panel discussion on “Obamacare in the Supreme Court.” The panelists were: Prof. Randy E. Barnett, Georgetown University Law Center; Hon. Walter Dellinger, O’Melveny & Myers; Prof. Neal K. Katyal, Georgetown University Law Center; Mr. C. Kevin Marshall, Jones Day.

In this video, Dellinger explains what he sees as conservative case for the individual mandate in The Patient Protection and Affordable Care Act.

Is the Affordable Care Act Constitutional? 2-22-12

March 5, 2012

On February 22, 2012, the University of Pennsylvania Student Chapter of the Federalist Society hosted this debate featuring Prof. Richard Epstein of New York University School of Law and Prof. Theodore Ruger of the University of Pennsylvania Law School.

Featuring:
–Prof. Richard Epstein, New York University School of Law
–Prof. Theodore Ruger, University of Pennsylvania Law School
–Moderator: Hon. Anthony J. Scirica, U.S. Court of Appeals, Third Circuit
–Introduction: Mr. Daniel Pollack, President, Pennsylvania Student Chapter

University of Pennsylvania Law School
Philadelphia, PA

Randy Barnett on the Affordable Care Act

March 3, 2012

Professor Randy Barnett of the Georgetown University Law Center participated in a debate on “The Constitutionality of the Affordable Care Act” on March 3rd at the Federalist Society’s 2012 Annual Student Symposium at Stanford Law School. In this video, Professor Barnett puts forward his argument in four points.

Fourth Annual Rosenkranz Debate: Constitutionality of Health Care Law 11-12-11

November 12, 2011

The Fourth Annual Rosenkranz Debate was held on November 12, 2011, during The Federalist Society’s 2011 National Lawyers Convention. The debate, titled “RESOLVED: Congress Acted Within Its Authority in Enacting the Patient Protection and Affordable Care Act”, featured Prof. Laurence H. Tribe of Harvard Law School and Hon. Paul D. Clement of Bancroft PLLC and former U.S. Solicitor General with Prof. Nicholas Quinn Rosenkranz of the Georgetown Law Center as the moderator. Introduction by Mr. Eugene B. Meyer, President of the Federalist Society.

Fourth Annual Rosenkranz Debate and Luncheon
RESOLVED: Congress Acted Within Its Authority in Enacting the Patient Protection and Affordable Care Act
12:30 p.m. – 2:30 p.m.
Grand Ballroom

–Hon. Paul D. Clement, Partner, Bancroft PLLC and former U.S. Solicitor General
–Prof. Laurence H. Tribe, Carl M. Loeb University Professor, Harvard Law School
–Moderator: Prof. Nicholas Quinn Rosenkranz, Georgetown University Law Center
–Introduction: Mr. Eugene B. Meyer, President, The Federalist Society

Mayflower Hotel
Washington, DC

Podcasts


FedSoc SCOTUScast – Randy Barnett and Neal Katyal Discuss Obamacare

July 16, 2012

On June 28, 2012, the Federalist Society organized a SCOTUScast (recording here) on the Affordable Care Act decision. Randy Barnett, the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, discussed the case with Neal Katyal, a partner at Hogan Lovells, professor at Georgetown Law Center, and former Deputy Solicitor General.

Barnett began by noting that the two most important provisions of the ACA at stake were the individual mandate and the Medicaid provision.  The former required that all Americans purchase health insurance as a means to compensate insurance companies for the costs that were being imposed upon them by various restrictions or various requirements–for example, guaranteeing community rating, which required that they issue policies for coverage for pre-existing conditions and that their rates adjusted accordingly.  The Medicaid provision, he explained, represented a substantial change in the program: Congress was going to provide considerable additional funding for new expanded Medicaid programs. It conditioned this new funding on states’ acceptance of the expanded program, but it also reserved the right to condition the funding for all existing Medicaid programs.  It was the entire funding condition that was challenged because it was alleged to be coercive toward the states.

Barnett said that the answers to this issues were not what anybody expected. (more…)

David Rivkin on the Health Care Decision NFIB v. Sebelius – Podcast

June 28, 2012

In the health care case NFIB v. Sebelius, the Supreme Court determined that the individual mandate exceeds the Commerce Clause power of Congress, but can be upheld under the taxing power. The Medicaid expansion provision was upheld, but the Court ruled that Congress could not take back Medicaid funds from states that decide to not participate in the expansion. In this recorded Teleforum, David Rivkin, the litigator who began this important case by filing the lawsuit in federal district court on behalf of numerous states and the NFIB, explains the decision and the dissents.

Featuring:

You can listen to the Teleforum here.

Fla. v. Dept. of Health and Human Services & Nat’l Fed. of Ind. Business v. Sebelius – Severability – Post-Argument SCOTUScast

March 30, 2012

On March 28, 2012, the Supreme Court heard oral argument in Fla. v. Dept. of Health and Human Services and Nat’l Fed. of Ind. Business v. Sebelius, two of the three cases before the Court involving the Patient Protection and Affordable Care Act of 2010, sometimes referred to as Obamacare or the Healthcare Act.  Both cases raise the question whether, if the individual mandate requiring Americans to obtain health insurance or pay a penalty is deemed unconstitutional, the remainder of the Healthcare Act still survives.  This is commonly referred to as a question of severability.

Both cases further raise the question whether Congress can lawfully withhold federal Medicaid funds from States that do not comply with the requirements of the Healthcare Act, or whether this amounts to unlawful coercion.  That issue will be the subject of a separate podcast.

To discuss the issue of severability, we have David Rivkin, who is a Partner at Baker Hostetler, and Ian Millhiser, who is a policy analyst at the Center for American Progress.

U.S. Department of Health and Human Services v. Florida – Individual Mandate

March 29, 2012

On March 26-27, 2012, the Supreme Court heard oral argument in U.S. Department of Health and Human Services v. Florida, which is one of three cases before the Court involving the Patient Protection and Affordable Care Act of 2010, sometimes referred to as Obamacare or the Healthcare Act.  This case presents the question whether Congress has power under the Constitution to require that virtually all Americans either obtain health insurance or pay a penalty.  This requirement is commonly referred to as the individual mandate.

The case also raises the question whether the Anti-Injunction Act prohibits a challenge to the validity of the Healthcare Act until the individual mandate takes effect in 2014.  This question will be the subject of a separate podcast.

To discuss the individual mandate we have Ilya Somin, who is an Associate Professor at the George Mason University School of Law, and Orin Kerr, who is a Professor of Law at the George Washington University Law School.

U.S. Department of Health and Human Services v. Florida – Anti-Injunction – Post-Argument SCOTUScast

March 28, 2012

On March 26 and 27, 2012, the Supreme Court heard oral argument in U.S. Department of Health and Human Services v. Florida, which is one of three cases before the Court involving the Patient Protection and Affordable Care Act of 2010, sometimes referred to as Obamacare or the Healthcare Act.  This case presents the question whether the Anti-Injunction Act prohibits a challenge to the validity of the Healthcare Act until certain provisions take effect in 2014.

This case also presents the question whether Congress has power under the Constitution to require that virtually all Americans either obtain health insurance or pay a penalty.  This requirement is commonly referred to as the individual mandate, and will be the subject of a separate podcast.

To discuss the Anti-Injunction Act issue we have Kevin Walsh, who is an Assistant Professor of Law at the University of Richmond Law School, and Steve Johnson, who is a Professor at the Florida State University College of Law.

Fla. v. Dept. of Health and Human Services & Nat’l Fed. of Ind. Business v. Sebelius – Coercion – Pre-Argument SCOTUScast

March 27, 2012

On March 28, 2012, the Supreme Court will hear oral argument in Fla. v. Dept. of Health and Human Services  and Nat’l Fed. of Ind. Business v. Sebelius, two of the three cases before the Court involving the Patient Protection and Affordable Care Act of 2010, sometimes referred to as Obamacare or the Healthcare Act.  A common question raised in these two cases is whether Congress can lawfully withhold federal Medicaid funds from States that do not comply with the requirements of the Healthcare Act, or whether this amounts to unlawful coercion.

Both cases also raise the question whether, if the individual mandate requiring Americans to obtain health insurance or pay a penalty is deemed unconstitutional, the remainder of the Healthcare Act still survives.  That issue will be the subject of a separate podcast.

To discuss the coercion issue, we have Richard Epstein, professor at New York University School of Law and professor emeritus at the University of Chicago Law School, and Michael Greve, who is the John G. Searle Scholar at the American Enterprise Institute.  Dean Reuter, Vice President and Director of the Practice Groups at the Federalist Society for Law and Public Policy Studies, moderates the discussion.

Fla. v. Dept. of Health and Human Services & Nat’l Fed. of Ind. Business v. Sebelius – Coercion – Pre-Argument SCOTUScast

March 27, 2012

On March 28, 2012, the Supreme Court will hear oral argument in Fla. v. Dept. of Health and Human Services  and Nat’l Fed. of Ind. Business v. Sebelius, two of the three cases before the Court involving the Patient Protection and Affordable Care Act of 2010, sometimes referred to as Obamacare or the Healthcare Act.  A common question raised in these two cases is whether Congress can lawfully withhold federal Medicaid funds from States that do not comply with the requirements of the Healthcare Act, or whether this amounts to unlawful coercion.

Both cases also raise the question whether, if the individual mandate requiring Americans to obtain health insurance or pay a penalty is deemed unconstitutional, the remainder of the Healthcare Act still survives.  That issue will be the subject of a separate podcast.

To discuss the coercion issue, we have Richard Epstein, professor at New York University School of Law and professor emeritus at the University of Chicago Law School, and Michael Greve, who is the John G. Searle Scholar at the American Enterprise Institute.  Dean Reuter, Vice President and Director of the Practice Groups at the Federalist Society for Law and Public Policy Studies, moderates the discussion.

Other News & Analysis


The Mystery of John Roberts

July 11, 2012

Author: Linda Greenhouse
Source: New York Times

In November 1991, the Supreme Court heard argument in Lee v. Weisman, on the question of whether a prayer recited by a member of the clergy at a public high school graduation violated the constitutional separation of church and state. The vote after argument was 5 to 4 to allow the prayer. Chief Justice William H. Rehnquist gave the opinion-writing assignment to Justice Anthony M. Kennedy.

Some months later, Justice Kennedy sent a note to Justice Harry A. Blackmun, the senior justice on the dissenting side. He had changed his mind, Justice Kennedy said; the argument against allowing the prayer was the better interpretation of the First Amendment’s Establishment Clause. Justice Blackmun, now the senior justice in the majority, had the prerogative of reassigning the opinion. He told Justice Kennedy to keep writing.

When the 5-to-4 decision to prohibit graduation prayers was finally announced on June 24, 1992, it was huge news. From today’s perspective, it may not sound like a big deal. But Lee v. Weisman was one of the hot-button cases of the 1991 term, perhaps second only to Planned Parenthood v. Casey, the abortion case that challenged the continued validity of Roe v. Wade.

The Chief Justice and Judicial Restraint

July 10, 2012

Author: Carrie Severino
Source: National Review

Jumping off Ed Whelan’s excellent post, I have heard a number of people argue that we shouldn’t have been all that surprised by the chief justice’s decision because he is easily classified as the sort of conservative who believes in a very robust application of what is often called “judicial restraint.”  Steven Teles — author of the excellent book The Rise of the Conservative Legal Movement — provided as good a summary of the argument as I’ve seen in writing:

One way to think about Roberts’ decision-making is that he really is a Reagan Justice Department-era conservative (I wrote about the Reagan DOJ in an article in Studies in American Political Development called “Transformative Bureaucracy”). That era of conservatives were pissed off at the activist judiciary that brought us school busing and other forms of what they took to be social engineering (which explains Roberts’ very blunt ruling in Parents Involved) and an inversion of American federalism. But that generation of conservatives were basically followers of Justice Frankfurter, and they tended to argue that it was 1960s/70s judicial liberalism that they were against, which they claimed was a kind of Lochnerism of the left. That kind of judicial conservatism—which was really Robert Bork’s style of conservatism, and the origin of his version of originalism—is in very stark contrast to legal libertarianism that inspired the case against the ACA.

Roberts went quite far in the direction of validating the constitutional sense of the case against the ACA, but what caused him to come down where he did is an entirely different mood than the folks who brought this case. In short, Roberts is not a conservative cut from the Randy Barnett/Richard Epstein cloth, which is comfortable with quite sweeping uses of judicial power to limit government. Roberts is sympathetic but simply lacks the taste for the jugular that they have, either as a result of his role as Chief Justice or his prudential sense of how far it is reasonable for the Court to go in using its power.

Teles’s explanation for Roberts’s behavior appeals to those of us who have followed the development of the conservative legal movement and the ideas that animated it. But I don’t find it persuasive, primarily because it requires one to assume that the NFIB case was approached differently by two kinds of “conservatives.”

Chief Justice Roberts and the Changing Conservative Legal Movement

July 10, 2012

Author: Joel Alicea
Source: Public Discourse

The clash between Chief Justice Roberts’ opinion and that of the joint dissenters is best seen as a clash between two visions of judicial restraint, and two eras of the conservative legal movement.

At the sprightly age of 57 and less than seven years into his term as chief justice, John Roberts looks like a man whom time has left behind. The reaction among legal conservatives to the Roberts opinion in National Federation of Independent Businesses v. Sebelius (the healthcare case) has been brutal. Many have accused the chief justice of exchanging the black robes of the jurist for the trappings of the politician. The chief justice is said to have “blinked” and “failed [his] most basic responsibility.” Noted originalist scholar Mike Rappaport strongly implied that Roberts is “both a knave and a fool.” The cataloguing could go on.

As much as these reactions reveal about differing views on a hotly contested question of constitutional law, they are at least as interesting because of what they say about the state of the conservative legal movement. Today’s legal conservatives view the chief justice’s opinion as judicial abdication, but it was not too long ago that the philosophy reflected in Roberts’ opinion would have been conservative orthodoxy. The truth is that the conservative legal movement’s conception of judicial restraint has changed, departing from the view it held when it emerged from the constitutional wilderness to which it had been banished during the Warren Court. NFIB v. Sebelius displays a conservative legal movement in transition—and one that is increasingly leaving the judicial restraint in Roberts’ opinion behind.

Chief Justice Roberts and the Morality of Law

July 9, 2012

Author: Ramesh Ponnuru
Source: National Review

It seems to me that many commentators are missing the distinction between a penalty and a tax in the same way that Chief Justice Roberts did. The error, grandiloquent as this sounds as I write it, derives from a fundamental misunderstanding of the nature of law.

Law has an inescapable moral component. Laws almost always have normative force. Let us leave aside the cases of laws that purport to command us to do something that is immoral, or to forbid us to do something morally obligatory. Those are unjust laws that are “no laws at all” in the sense of binding the conscience. Far more often, laws make that which was morally optional either morally mandatory or morally forbidden. There is no intrinsic moral reason that driving on the left side of the street should be impermissible. Lawmakers can nonetheless have good reasons for forbidding it, and once they have done so, their having done so becomes a good reason for us not to do it.

To my mind, what made the individual mandate so obnoxious was that it carried the law’s moral authority to a field where it was unnecessary and inappropriate. The government was purporting to bind our conscience in a new way: We were to be obligated to purchase a product, health insurance, as part of our general obligation to obey the law.

Did the Chief Justice Have to Decide the Commerce Clause Question in NFIB?

July 3, 2012

Author: Mark Tushnet
Source: Balkinization

Short answer: On one view, yes. A brief course in statutory interpretation is needed here. There is a “canon” of statutory construction known as the “constitutional avoidance” canon. It comes in two versions, now labeled the “classical” version and the “modern” one. On the modern version, a judge faced with a statute that, most naturally read, raises difficult constitutional questions, should adopt instead a construction — if one is fairly available — that does not raise such questions. On the modern version, then, the Chief Justice didn’t have to address the Commerce Clause question; all he needed to do was to note that the question was difficult and that construing the statute to impose a tax was an available reading.

So, did John Roberts Succeed? Some thoughts on being too clever by half.

July 3, 2012

Author: Jessie Hill
Source: PrawfsBlawg

Though I’m not sure I can add much useful insight to the polyphony already out there about the Supreme Court decision in the Affordable Care Act case, the question that’s moving me to blog, now that we’re a few days out, is whether Chief Justice John Roberts in fact succeeded in his ostensible goal–that is, convincing the nation that this was not a politically or ideologically driven decision and that the Supreme Court is not a political/ideological institution.

Obviously, the disposition of the case did not ultimately break down on ideological lines. No one can dispute that. But at the same time, from this postgame perspective, Roberts’s rather cunning opinion appears to me to be more politically driven than it would have if he had just voted with the conservatives.

A Vast New Taxing Power

July 2, 2012

Author:
Source: Wall Street Journal

The commentary on John Roberts’s solo walk into the Affordable Care Act wilderness is converging on a common theme: The Chief Justice is a genius. All of a sudden he is a chessmaster, a statesman, a Burkean minimalist, a battle-loser but war-winner, a Daniel Webster for our times.

Now that we’ve had more time to take in Chief Justice Roberts’s reasoning, we have a better summary: politician. In fact, his 5-4 ruling validating the constitutional arguments against purchase mandates and 5-4 ruling endorsing them as taxes is far more dangerous, and far more political, even than it first appeared last week.

This is a minority view. By right-left acclaim, at least among elites, the Chief Justice has engineered a Marbury v. Madison-like verdict that camouflages new limits on federal power as a reprieve for President Obama’s entitlement legacy and in a stroke enhanced the Supreme Court’s reputation—and his own. This purported “long game” appeals to conservatives who can console themselves with a moral victory, while the liberals who like to assail the Chief Justice as a radical foe of democracy can continue their tantrum.

The Democratic Virtues of John Roberts

July 2, 2012

Author: Ross Douthat
Source: New York Times

Steve Teles offers some plausible insight into the intellectual roots of John Roberts’ health care decision:

One way to think about Roberts’ decision-making is that he really is a Reagan Justice Department-era conservative (I wrote about the Reagan DOJ in an article in Studies in American Political Development called “Transformative Bureaucracy”). That era of conservatives were [angry] at the activist judiciary that brought us school busing and other forms of what they took to be social engineering (which explains Roberts’ very blunt ruling in Parents Involved) and an inversion of American federalism. But that generation of conservatives were basically followers of Justice Frankfurter, and they tended to argue that it was 1960s/70s judicial liberalism that they were against, which they claimed was a kind of Lochnerism of the left. That kind of judicial conservatism—which was really Robert Bork’s style of conservatism, and the origin of his version of originalism—is in very stark contrast to legal libertarianism that inspired the case against the ACA.

Roberts went quite far in the direction of validating the constitutional sense of the case against the ACA, but what caused him to come down where he did is an entirely different mood than the folks who brought this case. In short, Roberts is not a conservative cut from the Randy Barnett/Richard Epstein cloth, which is comfortable with quite sweeping uses of judicial power to limit government. Roberts is sympathetic but simply lacks the taste for the jugular that they have, either as a result of his role as Chief Justice or his prudential sense of how far it is reasonable for the Court to go in using its power.

John Roberts’s Decision

July 2, 2012

Author: Mike Rappaport
Source: Library of Law and Liberty

I had been writing a post speculating on why John Roberts might have joined the progressives to uphold Obamacare in the Sebelius case when I came upon the story by Jan Crawford reporting that Roberts had changed his vote in the case.  That Roberts changed his vote, of course, does not establish why he did so.  But the story does say something about the matter:

But Roberts pays attention to media coverage. As Chief Justice, he is keenly aware of his leadership role on the Court, and he also is sensitive to how the Court is perceived by the public.  There were countless news articles in May warning of damage to the Court – and to Roberts’ reputation – if the Court were to strike down the mandate. . . . Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint.  It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, “wobbly,” the sources said.

Who Leaked?

July 1, 2012

Author: Orin Kerr
Source: Volokh Conspiracy

Jan Crawford’s remarkable story on the Chief Justice’s vote prompts a bunch of questions. I’ll start with one: Who leaked the details to Crawford so soon after the case was handed down? If you stop and think about it, the leak is pretty incredible. It offers the details of the Justices’ deliberations in the highest profile case in recent memory just three days after the decision was handed down. I can’t remember anything quite like that.

So who leaked? We don’t know for sure, of course. But Crawford’s story has the kinds of details that only the Justices and their clerks would likely know. The leaks go into what the Justices were thinking and what signal they meant to send with their actions. (Example 1: “There was a fair amount of give-and-take with Kennedy and other justices, the sources said. One justice, a source said, described it as ‘arm-twisting.’” Example 2: “The fact that the joint dissent doesn’t mention Roberts’ majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.”) That sure seems sounds like the kind of stuff only Justices and their clerks would be privy to. Further, I doubt Crawford would run with a story with that kind of detail that was sourced less directly. So my best guess would be that the two sources she relies on are from the among the Justices and their clerks.