VII. Key Issues: Regulation & Reform >> C. Health Reform >> Affordable Care Act (ACA) >> ACA and the Courts (last updated 1.12.17)
- 1 Overview
- 2 Supreme Court Rulings
- 2.1 NFIB v. Sebelius (Decided June 28, 2012)
- 2.2 Liberty v. Lew (Declined to Review December 2, 2013)
- 2.3 Burwell v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Burwell (Decided June 30, 2014)
- 2.4 Association of American Physicians and Surgeons v. Sebelius (Declined to Review January 12, 2015)
- 2.5 Mayhew v. Burwell (Declined to Review June 8, 2015)
- 2.6 Coons v. Lew (IPAB) (Declined to Review March 30, 2015)
- 2.7 IRS Challenge (Exchange Subsidies)—King V. Burwell (Decided June 25, 2015)
- 2.8 Origination Clause–Sissel v. U.S. Department of Health & Human Services (Declined to Review January 19, 2016)
- 3 Obama Administration Track Record in Supreme Court
- 4 Other Major Rulings
- 5 Pending Legal/Constitutional Challenges
- 6 Analysis
- 7 News
At least 114 lawsuits have been filed to date, though 100 of these consist of challenges to the contraception mandate. The following summarizes the cases that have reached the U.S. Supreme Court:
- Individual Mandate/Medicaid Coercion. In Nat’l Fed’n of Indep. Bus. et al. v. Sebelius et al., 132 S. Ct. 2566 (2012), the Supreme Court upheld the constitutionality of the individual mandate as a tax (a majority of the Court ruled it was an impermissible use of the Commerce Clause) and invalidated conditioning of federal Medicaid funds on state acceptance of Medicaid expansion.
- Employer Mandate. On December 2, 2013 the Supreme Court declined to review without comment a challenge to the employer mandate in the case of Liberty v. Lew (formerly Liberty v. Geithner).
- Contraception Mandate. On June 30, 2014, the Supreme Court ruled in Burwell v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Burwell that the Religious Freedom Restoration Act applied to closely held for-profit corporations, meaning that they were not required to provide four products that Hobby Lobby said induce abortions. All documents/briefs related to Hobby Lobby are at SCOTUSblog, along with links to past SCOTUSblog coverage. A full set of legal documents related to Conestoga Wagons is here.
- IPAB. On March 30, 2015, the Supreme Court declined to hear Coons v. Lew, which challenged the constitutionality of the Independent Payment Advisory Board.
- Exchange Subsidies. On June 25, 2015, the Supreme Court ruled 6-3 in King v. Burwell to allow premium subsidies on federally-run Exchanges. See IRS Challenge (Exchange Subsidies) for details.
- Origination Clause. On January 19, 2016, the Supreme declined to hear Sissel v. U.S. DHHS, which challenged the law on grounds that its passage violated the Origination Clause.
ACA Track Record. On its face, the administration has “won” 3 cases decided by the Supreme Court (along with 2 others the Court declined to review, although one of these was ruled by an appeals court to be “unripe” hence it may yet eventually be heard) and lost 2 others (contraception cases). However, in NFIB v. Sebelius, the Court ruled that the individual mandate was a violation of the Commerce Clause (it was saved only by declaring it a tax) and that the original penalty provision for states electing not to expand Medicaid was impermissibly coercive. Thus, while it did not strike down the statute, this ruling greatly weakened it by putting constraints on how large individual mandate penalties could be and by making Medicaid expansion optional.
Major Legal Cases Pending. As of January 20, 2016, there are 11 major cases now moving forward, most having cleared preliminary hurdles to being heard on their merits (details here). Each of these court cases raise constitutional or significant legal questions. But no remaining cases have the potential to invalidate the entire statute.
Supreme Court Rulings
These are presented in chronological order of the date a final determination was rendered by the Supreme Court about them.
NFIB v. Sebelius (Decided June 28, 2012)
The Court ruled on three separate cases in a single opinion, NFIB v. Sebelius, DHHS v. Florida and Florida v. DHHS. An earlier district court opinion on 1.31.11 by Judge Roger Vinson had declared the individual mandate unconstitutional and further declared the remainder of the Act void because it was not severable. However, Judge Vinson subsequently stayed his own order for 7 days contingent on the government filing an appeal to the 11th Circuit Court of Appeals which affirmed that the individual mandate was unconstitutional but that the provision was separable, leaving the rest of the law intact.
- SCOTUS. Opinion in National Federation of Independent Business v. Sebelius (June 28, 2012)
- Wikipedia. National Federation of Independent Business v. Sebelius. Contains a very detailed discussion of this case and summary of the various opinions, concurring and dissenting, that were issued.
Briefs for each major question considered by the Court may be found here:
- Supreme Court of the U.S.. Patient Protection and Affordable Care Act Cases (March 26-28, 2012). Lists live links to the orders, case filings, and other information pertaining to the Patient Protection and Affordable Care Act cases (includes petitions, briefs and reply briefs).
- National Federation of Independent Business v. Sebelius. Docket No., 11-393 (Individual mandate). The Eleventh Circuit and the Sixth Circuit issued directly conflicting final judgments about the facial constitutionality of the ACA’s mandate that virtually every individual American must obtain health insurance. 26 U.S.C. § 5000A. Moreover, despite the fact that the mandate is a “requirement” that Congress itself deemed “essential” to the Act’s new insurance regulations, 42 U.S.C. § 18091(a)(2)(I), the Eleventh Circuit held that the mandate is severable from the remainder of the Act. The question presented is whether the ACA must be invalidated in its entirety because it is non-severable from the individual mandate that exceeds Congress’ limited and enumerated powers under the Constitution.
- Department of Health and Human Services v. Florida. Docket No., 11-398 Anti-Injunction Act. Whether the suit brought by respondents to challenge the minimum coverage provisions of the Patent Protection and Affordable Act is barred by the Anti-Injunction Act 26 U.S.C. §7421(A).
- Department of Health and Human Services v. Florida. Docket No., 11-398 (Minimum Coverage Provision). Beginning in 2014, the minimum coverage provision of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119, amended by the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029, will require non-exempted individuals to maintain a minimum level of health insurance or pay a tax penalty. 26 U.S.C.A. 5000A. The question presented is whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision.
- Florida v. Department of Health and Human Services. Docket No. 11-400 (Medicaid). Does Congress exceed its enumerated powers and violate basic principles of federalism when it coerces States into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program, or does the limitation on Congress’s spending power that this Court recognized in South Dakota v. Dole, 483 U.S. 203 (1987), no longer apply?
Liberty v. Lew (Declined to Review December 2, 2013)
Burwell v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Burwell (Decided June 30, 2014)
On June 30, 2014, the Supreme Court ruled in Burwell v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Burwell that the Religious Freedom Restoration Act applied to closely held for-profit corporations, meaning that they were not required to provide four products that Hobby Lobby said induce abortions.
Association of American Physicians and Surgeons v. Sebelius (Declined to Review January 12, 2015)
Background. This case challenged the ACA on a variety of grounds. On 3.7.14, the D.C. Circuit Court of Appeals affirmed a district court ruling dismissing the case.
SCOTUS Decision. On 1.12.15, the Supreme Court denied a petition to review the case. Full case documents are here.
Mayhew v. Burwell (Declined to Review June 8, 2015)
Brief History. This case by the State of Maine challenged the ACA’s requirement that states maintain their eligibility requirements for children until 2019 arguing that this maintenance-of-effort requirement was unconstitutionally coercive. The First District Court of Appeals ruled against the plaintiffs on 11.17.14.
SCOTUS Decision. The Supreme Court denied a petition to review the full case on 6.8.15.
Coons v. Lew (IPAB) (Declined to Review March 30, 2015)
The Goldwater Institute in Coons v. Lew (formerly Coons v. Geithner) argued the federal health care law “exceeds the powers of Congress and violates individual rights as well as violates the Separation of Powers doctrine. Specifically, our suit is unique among the other lawsuits pending around the country in that it challenges Congress’s creation of the Independent Payment Advisory Board (IPAB) as an unconstitutional delegation of Congressional powers to an unelected, unaccountable executive agency.” This is the only challenge to the federal health insurance law to challenge the constitutionality of IPAB.
As reported in National Review: “By the terms of the PPACA, IPAB can, within limits, exercise explicitly legislative powers to set policy for any matter “related to the Medicare program,” with other provisions making clear that IPAB can treat within that purview any “system-wide health-care costs, patient access to care, utilization, and quality of care . . . [including from] private payers.” It can do so without resorting to ordinary notice-and-comment rule-making and with very little opportunity for Congress to overturn its decisions or even amend them beyond a severely circumscribed scope. Worse, IPAB’s actions are exempt from judicial review, leaving aggrieved parties with neither legislative, administrative, nor judicial recourse in reining in unwarranted power grabs.” IPAB also is not subject to annual appropriations, further limiting Congress’s ability to making the agency accountable. Finally, ACA allows Congress to dissolve IPAB only if it follows a specified procedure during a seven-month period in 2017.
The Ninth Circuit dismissed the suit as unripe, and did not reach the merits of the plaintiff’s challenge under the constitutional anti-delegation doctrine, explaining that the IPAB is statutorily prohibited from recommending a reduction until January 1, 2019.
The Supreme Court on March 30, 2015 declined to hear the challenge and, as is customary, failed to give a reason for its decision. A federal district court previously ruled that the board does not violate the Constitution, and an appeals court later dismissed the case as being “unripe,” meaning that there is no practical harm at stake because the board does not yet exist.
Legal scholar Jonathan Adler reported that the provision prohibiting dissolution of the IPAB except under narrowly proscribed circumstances is “a statutory provision even the Obama administration has acknowledged could not hold up in court.”
The full history of the case and all relevant course documents are available at Goldwater Institute.
Origination Clause–Sissel v. U.S. Department of Health & Human Services (Declined to Review January 19, 2016)
The ACA imposes a charge on Americans who fail to buy health insurance — a charge that the U.S. Supreme Court characterized in June 2012 as a federal tax. In this case, the non-profit Pacific Legal Foundation argues that that this purported tax is illegal because it was introduced in the Senate rather than the House, as required by the Constitution’s Origination Clause. [The Constitution’s Origination Clause. Article 1, Section 7, Clause 1 states: “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”].
The exact procedure used to pass the ACA was as follows: “On September 17, 2009, Congressman Charlie Rangel introduced a bill in the House, H.R. 3590, the “Service Members Home Ownership Tax Act of 2009,” whose purpose was “to amend the Internal Revenue Code of 1986 to modify the first-time homebuyers credit in the case of members of the Armed Forces and certain other Federal employees.” The bill passed the House on October 8 by a 416-0 vote. On November 19, Harry Reid introduced his own version of H.R. 3590 in the Senate. He took the bill that had been unanimously passed by the House, renamed it the “Patient Protection and Affordable Care Act,” deleted all its contents after the first sentence, and replaced it with totally different content. What followed was the first pass of the Senate version of ObamaCare.”
Arguments for Plaintiff
- Protection of the Origination Clause. The Heritage Foundation’s Andrew R. Kloster maintains (8.12.15) that the Circuit Court “decision is fundamentally flawed… The Supreme Court, Pillard argues, has defined the Origination Clause as a ‘purposive’ clause. In other words, the original three-judge panel contends that since the main purpose of Obamacare was to expand health insurance coverage, rather to raise revenue for the general treasury—well, then the law is not a bill to raise revenue (even if, as the Supreme Court stated in its NFIB decision, the legislation has the potential to raise ‘considerable revenue’). Under this precedent, the Senate could originate any tax bill, so long as some federal court was willing to hold that the ‘purpose’ of the bill wasn’t primarily to raise tax revenue, but to do something else. If that is the case, so much for the protections provided by the Origination Clause.”
- Case is Justiciable. The Supreme Court held in the Munoz-Flores case that the Origination Clause is “justiciable” in the courts (Gaziano 10.25.15).
- Gut and Replace is Not Controversial for Non-Revenue Bills. “The practice of gutting a non-revenue bill and adding text without taxes may be somewhat common, but that presents no constitutional problem. The relevant practice in Sissel v. HHS is gutting a six-page House bill concerning military housing credits that supposedly raised revenue (it would not have raised taxes) and the Senate’s substitution of a 2074 page health care bill with 17 historically large taxes (Gaziano 10.25.15).
- Senate Amendments Were Non-Germane. Under the Origination Clause, the Senate may amend House-passed tax measures, yet the Supreme Court has long held that the Senate’s tax amendment must be “germane” to the House originated tax measure. Obamacare and its taxes have nothing to do with military home buying (Gaziano 10.25.15).
- House Support. On November 8, 2013, Representative Trent Franks (R-AZ) and thirty-nine other Republican members of the House of Representatives filed a “friend of the court” brief in support of this case. The Pacific Legal Foundation’s Paul J. Beard told the Washington Times that “this support from members of the House is especially significant because PLF’s lawsuit defends the constitutional authority of the lower chamber, the legislative body that is closest to the people.”
- Other Arguments. Timothy Sandefeur has provided a detailed summary of key arguments contained in various amicus briefs filed on behalf of plaintiffs.
Arguments Against Plaintiff.
- Case is Non-Justiciable. Skeptics believe that this question is non-justiciable, i.e., represents a “political” question the Court would be reluctant to hear.
- No Blue Slip Resolution Filed. “The Senate has properly exercised its constitutional authority to amend revenue-raising bills, but when it has contravened the House’s prerogative by attempting to originate such bills itself, the House has zealously defended its constitutionally-granted authority. Most often it has done this by using a ‘blue slip’ resolution to inform the Senate that the House believes the Senate’s bill or the Senate’s amendment to a House non-revenue bill infringes upon the House’s constitutional prerogative to originate bills for raising revenue and that, accordingly, the House refuses to consider the Senate bill… not a single member of the House filed a blue slip resolution at the time the ACA was being considered.”
- Court Would Not Overturn Major Law on Procedural Nuance. Even if it heard the case, critics argue that courts could not justify setting aside the entire law based on such a procedural nuance.
- Past Precedents. As well, the identical procedure has been used in the past, for example to pass the TARP bill in October 2008. The Supreme Court also established in 1892 an “enrolled bill rule” in its 1892 decision in the Marshall Fields Co. v. Clark case. Under this rule, “the Court essentially says if Congress tells it a bill originated in a specific House, it simply accepts that statement of enrollment as the ‘proper origination of the bill.’” The Supreme Court has reviewed only eight Origination Clause claims in its entire history, and has never invalidated an Act of Congress on that basis.
Plaintiff appealed to the D.C. Circuit Court of Apppeals on Jul. 5, 2013. Briefing completed Dec. 20, 2013. Oral argument held on May 8, 2014. On July 29, 2014, the D.C. Circuit Court of Appeals ruled against this challenge, holding that the individual mandate tax need not have originated in the House of Representatives because it does not qualify as a “bill for raising revenue” under the Constitution. In a relatively short opinion by Judge Judith Rogers, the court holds that the overall purpose of the individual mandate tax was to force people to buy insurance, not to raise revenue, and therefore the constitutional requirement that it originate in the House does not apply. In early October, 2014, plaintiffs petitioned for an en banc hearing by the entire D.C. Circuit Court (amicus brief in support of rehearing). On August 7, 2015, the D.C. Circuit denied the petition over the strong dissent of four judges and with an expanded response from the original panel members. A petition for writ of certiorari was filed with the U.S. Supreme Court on October 26, 2015.
The Chairman of the House Judiciary Subcommittee on the Constitution, Rep. Trent Franks of Arizona, and 19 House colleagues co-sponsored H.Res. 153 on April 12, “Expressing the sense of the House of Representatives that the Patient Protection and Affordable Care Act of 2009 violates article I, section 7, clause 1 of the United States Constitution because it was a ‘Bill for raising Revenue’ that did not originate in the House of Representatives.” However, because Congress complied with the letter, if not the spirit, of Article I, section 7, legal scholar Jonathan Adler argues that “believe it or not, this subterfuge is likely to survive judicial review. Federal courts are quite reluctant to second-guess whether Congress has followed relevant procedural rules, even when the rules are constitutionally mandated.”
In the aftermath of the D.C. Circuit Court of Appeals ruling against the plaintiffs, PLF argued: “nothing in the case law holds that courts can decide for themselves what the ‘the main object or aim’ of a tax is, and then apply whenever constitutional requirements it thinks appropriate, given that ‘general purpose.’ Under the approach that the D.C. Circuit takes here, a court could say that the ‘main object or aim’ of a tax isn’t to raise money, but to fund the military, or to promote the general welfare—and therefore that the Origination Clause doesn’t apply. The ‘general purpose’ approach—which the Supreme Court has never endorsed—gives courts too much power to decide when to apply constitutional restrictions, and when not.”
A ruling in favor of the plaintiff would have invalidated the entire law.
- Reaction from the Pacific Legal Foundation (1.19.16). “The Senate’s subversion of the constitutionally mandated rules for tax bills is a danger not just in this case but in future cases as well. By allowing Congress to use procedural tricks to evade the constitutional rules, the Court has opened the door to Congress further evading democratic accountability for the laws it passes.”
Pacific Legal Foundation maintains a complete set of documents related to this case, which dates back to October 7, 2010. See also Congressional Research Service. The Origination Clause of the U.S. Constitution: Interpretation and Enforcement (Mar. 15, 2011).
Obama Administration Track Record in Supreme Court
General Track Record
- Obama Has Lost in the Supreme Court More Than Any Modern President. According to Ilya Shapiro at Cato Institute (6.16.16), “The Obama administration, by historical standards, has done exceedingly poorly before the Supreme Court.”
- As of July 2016, Obama had 44 unanimous losses. For comparison, George W. Bush suffered 30 unanimous losses, while Bill Clinton withstood 31. In other words, Obama has lost unanimously 50 percent more than his two immediate predecessors.
- Overall, the administration has managed a record of 79-96, a win rate of just above 45%.
- Worst Term: 3-9 (25%) came in the abbreviated 2008-2009 term—counting only cases argued after the January 2009 inauguration.
- Best Term: 2013-2014, 11-9 (55%)
Previous Track Records
- Lawyers said the government traditionally averages about a 70 percent winning percentage before the high court. Its advantages are so great that the Justice Department’s chief Supreme Court attorney, the solicitor general, is dubbed the “10th Justice.”
- Winkler estimates the Obama administration has won 39 percent of the cases in which it has been a party in the litigation. But many reflect the split between the administration and 5 conservative-leaning justices since the administration backed the losing argument in 11 cases that were decided 5-4, and one case that was decided 5-3.
- Nevertheless, the administration also has lost a number of 9-0 cases. Ilya Somin, a constitutional law professor at George Mason University, said it is striking to take into account the number of times the Obama administration has been on the losing end of unanimous decisions: “When the administration loses significant cases in unanimous decisions and cannot even hold the votes of its own appointees — Justices Sonia Sotomayor and Elena Kagan — it is an indication that they adopted such an extreme position on the scope of federal power that even generally sympathetic judges could not even support it.”
ACA Track Record
On its face, the administration has “won” 3 cases decided by the Supreme Court (along with 5 others the Court declined to review, although one of these was ruled by an appeals court to be “unripe” hence may yet eventually be heard) and lost 2 others (contraception cases). However, in NFIB v. Sebelius, the Court ruled that the individual mandate was a violation of the Commerce Clause (it was saved only by declaring it a tax) and that the original penalty provision for states electing not to expand Medicaid was impermissibly coercive. Thus, while it did not strike down the statute, this ruling greatly weakened it by putting constraints on how large individual mandate penalties could be and by making Medicaid expansion optional.
Other Major Rulings
According to Timothy Jost (6.23.15), “Nearly two dozen other cases challenging various provisions of the ACA have been dismissed by the federal courts at various levels since the ACA was enacted in 2010. Many of these cases challenged the individual mandate, although some also challenged other provisions. Many were dismissed on standing grounds and others were dismissed after the Supreme Court’s 2012 National Federation of Independent Business decision settled the law regarding the constitutionality of the individual mandate.”
Central United Life Insurance v. Burwell (Decided July 1, 2016)
This case challenged an Obama administration rule that forbade the sales of fixed indemnity insurance plans as an alternative to ACA coverage. Under the rule, fixed indemnity insurance would be allowed only as a supplement to major medical coverage that complied with the ACA. People buying the more limited coverage would have to attest, in their applications, that they already had “minimum essential coverage.”
According to Federal Regulations Advisor, “the Public Health Service Act (PHSA) establishes coverage requirements for all health insurance plans except enumerated ‘excepted benefits’ that are provided under a separate policy and as independent, noncoordinated benefits. Fixed indemnity plans are excepted benefit plans that pay a fixed amount for a particular medical event. Obamacare left the exception intact from ‘minimum essential coverage.’ HHS, however, in Patient Protection and Affordable Care Act; Exchange and Insurance Market Standards for 2015 and Beyond, promulgated a rule that bars plaintiffs from selling fixed indemnity plans to individual consumers unless those consumers certify that they have minimum essential coverage under Obamacare.
According to the New York Times (7.5.16), “the plaintiffs in the case, who sell fixed indemnity insurance, said the federal rule would essentially destroy the market for such products. ‘Even after the Affordable Care Act, lower-income consumers may not be able to afford major medical coverage,’ said Quin M. Sorenson, a lawyer at Sidley Austin who represented the plaintiffs. In states that have not expanded Medicaid eligibility, he said, three million people fall into a coverage gap: They make too much to qualify for Medicaid, but not enough to qualify for subsidies in the public insurance marketplace, and they cannot afford major medical coverage on their own. For some of them, he said, fixed indemnity insurance plans may be a valuable option.”
The United States District Court for the District of Columbia permanently enjoined HHS from enforcing the rule, and D.C. Circuit affirmed on 7.1.16. The United States Court of Appeals for the District of Columbia Circuit “struck down the HHS rule, upholding an earlier decision by Judge Royce C. Lamberth of Federal District Court, who said the Obama administration’s rule ‘has no basis in the statutory text it purports to interpret and plainly exceeds the scope of the statute.'” According to the ruling, “disagreeing with Congress’s expressly codified policy choices isn’t a luxury administrative agencies enjoy.” The decision criticized “administrative overreach” by the Department of Health and Human Services. “Here, HHS described its rule as an attempt to ‘amend the criteria for fixed indemnity insurance to be treated as an excepted benefit’…. Most likely, HHS intended only to amend the regulatory criteria because of course only Congress can amend its statutes. But it’s more accurate – and fatally so – to say HHS’s rule proposed to ‘amend’ the PHSA itself.” It is unlikely the administration will appeal to the Supreme Court.
- Adler, Jonathan H. The Future of Health Care Reform Remains in Federal Court. March, 2014. “PPACA litigation continues apace and could well increase in the years to come as federal agencies seek to implement the health care reform law. This essay provides a brief overview of how continuing litigation in federal court will affect the implementation – and perhaps even the ultimate viability – of Congress’s latest and most ambitious health care reform effort.”
- Alliance for Health Reform. Legal Challenges to Health Reform: An Alliance for Health Reform Toolkit. 5.18.2010. Excellent overview of the legal issues. Includes list of resources summarizing various constitutional arguments pro and con.
- Fried, Charles. Health Care Law’s Enemies Have No Ally in Constitution. (5.21.2010).
- Greve, Michael. ObamaCare in the Supreme Court. (3.2.12)
- SCOTUSBlog. Special Feature: Affordable Care Act in depth. A 10-part series examining all aspects of the constitutionality of ACA.
- Shapiro, Ilya. PRO & CON State Suits Against Health Reform Are Well Grounded In Law—And Pose Serious Challenges. Health Affairs, June 2010; 29(6): 1229-1233. Abstract.
- Shapiro, Ilya and Trevor Burris. A Primer on the Constitutionality of Health Reform. Cato Institute, November 3, 2010.
- Jeffrey Toobin. Holding Court on Health Care Reform. The New Yorker (3.26.12)
- Debating the Constitutionality of the Federal Health Care Legislation. The Federalist Society (11.18.10). Event Audio/Video.
- Balkin, J.M. The constitutionality of the individual mandate for health insurance. New England Journal of Medicine 2.11.2010;362:482-483. Full Text
- Barnett, Randy. Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional. Abstract.
- Dorf, James. The Constitutionality of Health Insurance Reform, Part I: The Misguided Libertarian Objection. 10.21.2009.
- Dorf, James. The Constitutionality of Health Insurance Reform, Part II: Congressional Power. (11.2.09)
- Greve, Michael. This you must do. (2.7.12)
- Greve, Michael. The PPACA mandate: the government’s best case. (2.9.12)
- Jensen, Erik. The Individual Mandate and the Taxing Power. (9.27.10)
- Jost, Timothy S. PRO & CON State Lawsuits Won’t Succeed In Overturning The Individual Mandate. Health Affairs, June 2010; 29(6): 1225-1228. Abstract.
- Greve, Michael. Obamacaid revisited: against balance. (2.10.12)
- Greve, Michael. Obamacaid’s constitutional poison. (2.14.12)
- Greve, Michael. Obamacare and Medicaid: yet more pre-argument argument. (3.14.12)
- Greve, Michael. Obamacare and Medicaid: more pre-argument arguments. (3.15.12)
NFIB v. Sebelius Decision
- Adler, Jonathan H., Judicial Minimalism, the Mandate, and Mr. Roberts (October 31, 2012). The Health Care Case: The Supreme Court’s Decision and its Implications (Nathaniel Persily, Gillian E. Metzger, & Trevor W. Morrison eds., 2013) ; Case Legal Studies Research Paper No. 2012-35. Available at SSRN. Chief Justice John Roberts’s decision in NFIB v. Sebelius holding the individual mandate exceeded the scope of Congress’s power to regulate commerce but could nonetheless survive as a constitutional exercise of the taxing power caught most commentators by surprise. Post-decision reports that Roberts changed his vote at some point during deliberations fueled speculation his opinion was politically motivated. Ignored in most post-decision commentary is the extent to which Chief Justice Roberts’s NFIB opinion is consistent with his own stated judicial philosophy and his record on the bench. The key elements of his opinion, including his Commerce Clause analysis and adoption of a “saving construction” to preserve the statute’s constitutionality are of a piece with his prior opinions as a Justice and Circuit Court judge and his accounts of the proper judicial role. This decision provides further confirmation that the Chief Justice is, above all else, a conservative judicial minimalist in his approach to deciding cases.
- Barnett, Randy E., No Small Feat: Who Won the Health Care Case (and Why Did so Many Law Professors Miss the Boat)? (February 15, 2013). Florida Law Review, Vol. 65, pp. 1331-1350, 2013; Georgetown Public Law Research Paper No. 13-009. Available at SSRN. In this essay, prepared as the basis for the 2013 Dunwody Distinguished Lecture in Law at the Fredric G. Levin College of Law, University of Florida, I describe five aspects of the Supreme Court’s decision in NFIB v. Sebelius that are sometimes overlooked or misunderstood. (1) The Court held that imposing economic mandates on the people was unconstitutional under the Commerce and Necessary and Proper Clauses; (2) Whether viewed from a formalist or realist perspective, Chief Justice Roberts’ reasoning was the holding in the case; (3) The Court did not uphold the constitutionality of the individual insurance mandate under the tax power; (4) The newfound power to tax inactivity is far less dangerous than the commerce power that was advocated by the government and most law professors; and (5) the doctrine established by NFIB matters (to the extent that constitutional law doctrine ever matters). Finally, I turn my attention to the question of why so many law professors got this case so wrong. After providing a lengthy compendium of published law professor opinions about the case, the author suggests that most missed the boat because they have failed to appreciate the constitutional gestalt that informed the Rehnquist Court’s New Federalism, a gestalt that can now be seen to carry over to a majority of the Roberts Court.
- Solum, Lawrence B., How NFIB v. Sebelius Affects the Constitutional Gestalt (June 6, 2013). 91 Washington University Law Review 1 (2013); Georgetown Public Law Research Paper No. 12-152. Available at SSRN. The thesis of this essay is that the most important legal effects of the Supreme Court’s decision in NFIB v. Sebelius are likely to be indirect. Sebelius marks a possible shift in what we can call the “constitutional gestalt” regarding the meaning and implications of the so-called “New Deal Settlement.” Before Sebelius, the consensus understanding was that New Deal and Warren Court cases had established a constitutional regime of plenary and virtually unlimited national legislative power under the Commerce Clause (which might be subject to narrow and limited carve outs protective of the core of state sovereignty).After Sebelius, the constitutional gestalt is unsettled. In Sebelius, five justices of the Supreme Court endorsed a view of the commerce clause that is inconsistent with the constitutional gestalt associated with the New Deal Settlement. A fissure has opened in constitutional politics, creating space for an alternative constitutional gestalt. The core idea of the alternative view is that the New Deal Settlement did not create plenary and virtually unlimited legislative power; instead, proponents of the New Federalism argue that New Deal and Warren Court cases establish only the constitutionality of particular federal programs and specific zones of federal power. The most important indirect effect of Sebelius is that it enables constitutional contestation over the content of the constitutional gestalt and the meaning of the New Deal Settlement.
- aca litigation blog (Brad Joondeph, Professor of Law, Santa Clara University). A place to find news updates, legal analysis, and all official documents related to the states’ constitutional challenges to PPACA, including amicus curiae briefs filed by numerous individuals such as John Boehner and organizations such as the American Hospital Assocation. Last updated July 6, 2012.
- Health Care Lawsuits (Independent Women’s Forum). This is a project of the Independent Women’s Forum, which is a nonprofit group dedicated to promoting the principles of economic liberty, free markets, and personal responsibility.
- Kaiser Health News. Scoreboard: Tracking Health Law Court Challenges. KHN is tracking the status of 26 federal lawsuits seeking to overturn the Patient Protection and Affordable Care Act and will update those and other new cases on this page. Last updated November 14, 2011.
- ObamaCare Watch, Legal Challenges has news related to ACA court cases.