Posts Tagged ‘New Deal’

The Supreme Court Takes on the ACA

Tuesday, March 27th, 2012

As the Supreme Court begins three days of hearing about the constitutionality of the Patient Protection and Affordable Care Act (ACA), Americans have mixed feelings about President Barack Obama’s signature healthcare overhaul.  The individual mandate is extremely unpopular, despite the fact that approximately 80 percent of Americans have healthcare coverage through workplace plans or government insurance such as Medicare and Medicaid.  When the insurance obligation kicks in, the majority of Americans won’t need to buy anything new.  The bottom line appears to be that Americans object to being told how to spend their money, even if it solves the dilemma of the nation’s more than 50 million uninsured.  One critic dismissed the individual mandate by saying “If things were that easy, I could mandate everybody to buy a house and that would solve the problem of homelessness.”

Listen to Republicans describe the law as an attack on personal freedom, and you’d be surprised to learn that the idea originated with them.  Its model is the Massachusetts law enacted in 2006 when Mitt Romney was the governor.  Former House Speaker Newt Gingrich supported an individual mandate as an alternative to President Bill Clinton’s healthcare proposal, which put the burden on employers.  All four GOP candidates have promised to repeal the Affordable Care Act, which they describe as “Obamacare.”  Former Senator Rick Santorum (R-PA) terms it “the death knell for freedom.”

President Obama and congressional Democrats passed the mandate in 2010, without Republican support, in an effort to create a fair system that assures that all Americans — whether rich or poor, young or old — get the healthcare they need.  One thing that proponents point out is that other economically advanced countries have succeeded at it.  Congress determined that when the uninsured visit a clinic or the emergency room, the care they can’t afford costs roughly $75 billion a year.  A large percentage of that cost ends up adding $1,000 a year to the average family’s insurance premium.

In legal briefs challenging the law, opponents contend that the “minimum coverage requirement” — known as the individual mandate — would set a precedent that could apply to literally anything.  If it’s legal for Americans to be told to buy health insurance, Congress could try to impose “a broccoli mandate, a car-purchase mandate, really any other mandate that you’d want,” said Ilya Somin, a law professor at George Mason University.  “There are lots of interest groups that would love to lobby Congress to require people to buy their products.”

The mandate is intended to ensure that new insurance market reforms in the law work as intended.  Unless younger, healthier people — who often don’t purchase insurance until they get sick — are covered, the costs of those changes would be exorbitant.  In response to opponents’ admonitions that a mandate to buy insurance could lead to other government-required purchases, the Obama administration argued that no such examples exist.  “Respondents acknowledge that states do have the power to enact purchase mandates, but they identify no example of any state ever having compelled its citizens to buy cars, agricultural products, gym memberships or any other consumer product,” according to the Obama administration.

Not surprisingly, 73 percent of Americans believe that the Supreme Court will be influenced by politics when it rules on the constitutionality of the ACA.  The attitude crosses party lines and is particularly popular with independent voters, of whom 80 percent believe that the court will not base its ruling strictly on its legal merits, according to a Bloomberg National Poll.  Seventy-four percent of Republicans and 67 percent of Democrats believe that politics will be a determining factor in the court’s healthcare decision.

“I always worry when the court steps into the political thicket,” said Barbara Perry, a Supreme Court scholar and professor at the University of Virginia in Charlottesville.  “It does so at its peril.”  The justices themselves say that politics doesn’t impact their decisions.  “It is a very serious threat to the independence and integrity of the courts to politicize them,” Chief Justice John Roberts said at his 2005 Senate confirmation hearing.  Justice Stephen Breyer told Bloomberg News that politics doesn’t influence the court, even in cases with electoral implications.  “It would be bad if it were there,” he said.  “And I don’t see it.”

In reviewing the ACA, the Supreme Court is entering territory that it hasn’t approached since the days of Franklin Delano Roosevelt: ruling on a president’s signature legislative victory in the midst of his re-election campaign.  Justices are taking more time to listen arguments — six hours over three days — than any other case in the last 44 years.   “This is a central challenge to the modern Constitution, which was fashioned during the New Deal and then elaborated further during the civil rights revolution,” said Bruce Ackerman, a professor at Yale Law School in New Haven, Connecticut and author of The Decline and Fall of the American Republic.  “This goes to the very foundations of modern American government.”

The closest comparable was 76 years ago, involving Roosevelt’s New Deal, a response to the Great Depression.  It wasn’t a single piece of legislation and included the creation of Social Security.  The court ruled against parts of the New Deal, while leaving others in place.  The principal decision came when the court struck down much of the National Industrial Recovery Act, which allowed industries to create trade associations that set quotas and fixed prices.

Those wishing to tune in and watch the excitement are destined to be disappointed. The Supreme Court will make available same-day audio of the oral arguments.  In its announcement, the court said it is making the audio available because of the “extraordinary public interest” in the case.

U.S. Supreme Court Is Likely to Decide On the ACA This Term

Tuesday, October 11th, 2011

As of the first Monday of October, the United States Supreme Court is back in session and likely to make what could be a momentous decision on the Patient Protection and Affordable Care Act (ACA).  The nation’s highest court will consider President Barack Obama’s landmark healthcare overhaul, which impacts almost everyone in the country.  The Obama administration’s request last week that the justices resolve whether or not the healthcare law is constitutional makes it more likely than not that they will deliver their verdict by next June, shortly before the president and his Republican opponent move into the fall general election campaign.

Already, the GOP presidential candidates are taking advantage of virtually every debate and speech to attack Obama’s major domestic accomplishment, which extends health insurance to more than 30 million people who now lack coverage.  If, as expected, the justices agree to review the law’s constitutionality, those deliberations would define the court’s coming term.  Their decision could rank as the court’s most momentous since the December, 2000, ruling that sent George W. Bush to the White House.

According to the Med Page Today website, “The Obama administration petitioned the Supreme Court to decide on the constitutionality of the ACA, making it very likely that the high court will hear at least one of the cases challenging the landmark healthcare reform law before next year’s presidential election.  The U.S. Appeals Court for the 11th Circuit ruled in August that the individual mandate provision of the ACA is unconstitutional.  The Justice Department had until November to ask the Supreme Court to hear the case, but filing its petition sets the stage for oral arguments in the spring, and a final decision in June — at the height of Obama’s re-election campaign.  The 11th Circuit case was filed by 26 states that object to the ACA on a number of fronts, but opposition to the individual mandate is the main thrust of their argument.  The individual mandate, considered the linchpin of the law, requires everyone to have health insurance by 2014.  In its petition, lawyers for the Obama administration said the appeals court decision is ‘fundamentally flawed.’”

Supreme Court analysts say it is difficult to predict how the court would rule on the conservative challenge to the health care law.  Miguel Estrada argued several cases before the Supreme Court as an official with the Justice Department in the 1990s.  “The issues are really hard. Every time you ask the Supreme Court to overturn an act of Congress, it is a very difficult thing for the court to do. And Congress comes to the Supreme Court with a presumption of deference (to Congress) and constitutionality,” said Estrada.

Writing on the Big Think website, Robert de Neufville writes that “The administration’s decision strongly suggests that it will ask the Supreme Court to hear the case, since it doesn’t want the 11th Circuit’s decision to stand.  That puts the Supreme Court in the difficult position of having to rule on a politically charged piece of legislation during an election year.  Rick Hasen (of the Election Law Blog) that a Supreme Court decision is win-win for Obama: either the court affirms the constitutionality of the law or it seems to overreach by overturning it.  By the same token, ruling on the law may be a lose-lose proposition from the perspective of the court.  Whatever the court decides it will seem to be taking sides in a political struggle.  As Slate’s Dahlia Lithwick says,  there may not be five justices who want to want to make the court itself an election-year issue.  Lithwick says that “I don’t think Chief Justice John Roberts wants to borrow that kind of partisan trouble again so soon after Citizens United, the campaign-finance case that turned into an Obama talking point.  And I am not certain that the short-term gain of striking down some or part of the ACA (embarrassing President Obama even to the point of affecting the election) is the kind of judicial end-game this court really cares about.  Certainly there are one or two justices who might see striking down the ACA as a historic blow for freedom.  But the long game at the court is measured in decades of slow doctrinal progress — as witnessed in the fight over handguns and the Second Amendment — and not in reviving the stalled federalism revolution just to score a point.” 

The editors of Bloomberg Business Week fear the collateral damage that overturning the ACA might cause.  They note that “Should the Supreme Court take up healthcare reform this year?  So far, only one appeals court has ruled that the ‘individual mandate’ in ObamaCare — the requirement that virtually everybody must buy insurance, with government assistance if needed — overreaches the federal government’s powers under the commerce clause of the Constitution.  It’s not a trivial argument.  But an affirmative ruling would be a huge departure from our understanding of the commerce clause going back to the New Deal.  If the healthcare law’s individual mandate is unconstitutional, so is much of what the government has been doing for 80 years or so, and it will be the duty of the Supreme Court to sort through the ruins of the federal government as we know it and find a few shards to start building again.  We can’t help but suspect that the court will choose to avoid this opportunity, by not taking the case, by finding some other grounds for ruling, or by upholding ObamaCare.

“Ever since it passed in 2010, ObamaCare has been attacked as a costly and possibly unconstitutional intrusion of the federal government into people’s lives.  Almost the central issue in the campaign for the Republican presidential nomination has been the resemblance between ObamaCare and the state healthcare plan enacted in Massachusetts under then-Governor Mitt Romney.  Today, most Democrats feel the less said the better.  But if the new law loses in the Supreme Court, the political ramifications may look very different.  If the Supreme Court kills healthcare reform, it will stay dead a long time.  It took 17 years before anybody felt like scaling that mountain again after Hillary Clinton’s failure two administrations ago.”

Virginia Appeal Confirms the ACA’s Individual Mandate

Monday, September 19th, 2011

The Obama administration won a round in the legal battle over the Patient Protection and Affordable Care Act (ACA) when a federal appeals court tossed out two lawsuits in Virginia.  The 4th U.S. Circuit Court of Appeals ruled in both lawsuits — one filed by Virginia Attorney General Kenneth Cuccinelli, the second by Liberty University – that the plaintiffs did not have legal standing to sue.  This is a rejection of the first case that ended with a ruling that the healthcare reform law was unconstitutional.  Additional cases remain active, including the lawsuit filed by 26 other states, which means that the issue has by not gone away.

Virginia argued that it had the right to challenge the individual mandate – a key proviso of the law that requires people to buy health insurance by 2014 or pay a tax penalty – because it interferes with a state law that says residents can’t be forced to purchase health insurance.  According to the court, “To permit a state to litigate whenever it enacts a statute declaring its opposition to federal law” would “convert the federal judiciary into a forum for the vindication of a state’s generalized grievances about the conduct of government.”  During oral arguments, a lawyer for the Obama administration said that the case “fails at the outset” because the mandate is applicable to individuals and not the state.  After the decision was handed down, Cuccinelli expressed “disappointment” that the case was thrown out.  According to Cuccinelli, “the Court did not even reach the merits on the key question of Virginia’s lawsuit – whether Congress has a power never before recognized in American history: the power to force one citizen to purchase a good or service from another citizen.”

In the case brought by Liberty University — a private Christian school — the court said in a 2 – 1 ruling that it was blocking the case because a federal tax law stripped it of jurisdiction to decide the issue.  The Court was the first to rule that the individual mandate is essentially a tax.  Because the mandate cannot be enforced until 2014, the Court ruled that the Anti-Injunction Act “strips us of jurisdiction” from hearing a pre-enforcement challenge.  “What the Court said is that the penalty for not complying with the mandate functions as a tax that cannot be challenged until it has been assessed,” said Kevin Walsh, a law professor at the University of Richmond School of Law.

Virginia Governor Bob McDonnell reacted to the ruling, saying “Today, a three judge panel, consisting of two judges appointed by President Barack Obama and one by former President Bill Clinton, found that Virginia lacks standing to challenge the individual mandate provision of the federal healthcare law.  We respectfully disagree with the panel’s reasoning.  To conclude that a state has no standing to challenge an expensive and burdensome federal mandate on its citizens that the state has banned in its law, might cause James Madison and George Mason, Virginia’s principal drafters of our nation’s founding documents, to promptly roll in their graves.  To dismiss a Virginia statute as a basis for standing, declaring it to be ‘quintessentially political,’ and asserting that a state cannot be a ‘constitutional watchdog’ undermines our precious principles of federalism.  This decision must be promptly appealed.

“As federal courts across the country continue to come to differing conclusions on the merits of cases arguing the unconstitutionality of the federal healthcare law, today’s decision further exemplifies why these cases should be expedited to the nation’s highest court.  It is the Supreme Court that will ultimately determine whether the federal mandate on every citizen to purchase health insurance violates the U.S. Constitution.  States and businesses continue to expend time and money and languish in uncertainty as they try to come into compliance with a law that may ultimately be ruled unconstitutional.  It is exasperating that the President and the Justice Department oppose a prompt resolution of this case through an expedited appeal.  America needs finality in this case,” according to McDonnell.

Judge Diana Gribbon Motz, who was appointed to the bench by President Clinton, wrote that the only apparent function of the state law was “to declare Virginia’s opposition to a federal insurance mandate.”  The state law was enacted just days after President Obama signed the ACA into law.

Writing in U.S. News & World Report, Scott Galupo says that “Cuccinelli and co. follow a long trail from the 18th century British jurist William Blackstone to the Dred Scott case to the New Deal to the present day.  The conservative team, at first, makes a tight, prudential case against the Obamacare mandate that I, in my nonprofessional capacity, happen to favor.”  Parsing Cuccinelli’s statement about the decision, Galupo notes that “In plainer, get-to-the-point English: We grant you the social safety net established under the ‘Roosevelt Settlement.’  We recognize Congress’s power to regulate interstate commerce.  We even grant that this power could conceivably deliver universal healthcare.  But for Pete’s sake, don’t try to include ‘inactivity’ — that is, not buying a health insurance plan on the private market — under its purview.  Because, once you regulate the act of doing nothing, what’s left to regulate?  Er, nothing.  Thus, does the state’s power to tax and police become theoretically unlimited?  But, later in the body of the piece, Team Cuccinelli begins to play other, more presently familiar cards.  Glenn Beck fans will recognize the faces in the rogue’s gallery: Justice Oliver Wendell Holmes, progressive philosopher John Dewey, and others who, this argument goes, created the post-New Deal legal and philosophical edifice.  Wouldn’t you know it, this welfare-state stuff constitutes a violation of natural law — which, ipso facto, means economic laissez-faire — and a lurch into moral chaos.  Echoing the newly popular Hayek, Cuccinelli’s article asserts the primacy of economic rights while characterizing as relativistic the not-exclusively-liberal jurisprudential argument that personhood and dignity precede the marketplace.  (Last I checked, I’ve never seen an unborn baby sign a contract.)”

The Obama administration remains optimistic about the ACA.  “When it ends, we are confident we will prevail,” White House adviser Stephanie Cutter said.

John Dingell A Little-Known Healthcare Reform Advocate

Wednesday, January 13th, 2010

Congressman John Dingell is a pioneer of healthcare reform legislation.  Representative John Dingell Jr.’s (D-MI) journey to making healthcare reform a reality dates back to 1932 when his father — John Dingell Sr., an architect of the New Deal — initially introduced Medicare legislation in the early days of Franklin D. Roosevelt’s presidency.  The 83-year-old Dingell Jr., is one of the lead sponsors of the House legislation that will be reconciled with the Senate bill in conference committee.

Dingell, who is the longest-ever serving member of the House of Representatives, has introduced a national health insurance bill on the first day of every Congressional session as a tribute to his father.  After John Dingell, Sr. died in 1955, his son assumed his father’s Congressional seat and the quest to make national health insurance a reality.

Commenting on the Senate’s recent passage of the Patient Protection and Affordable Care Act, Dingell said that “I commend my colleagues in the Senate on achieving this historic milestone.   The journey is long, but the reward will be great. Unlike any other time in our history, we have two strong pieces of comprehensive health reform legislation that promise to deliver much needed access and relief to the American people.  When President Obama signs a final, combined bill, we will be well on our way to fulfilling our longstanding moral obligation — providing quality, affordable coverage for every American.  However, as is usually the case with any major overhaul, this is the first step in the process, not the last.”

American Medical Association Supported Free Universal Healthcare at the Beginning of the Healthcare Debate

Thursday, December 17th, 2009

The American Association for Labor Legislation – a group of economists whose officers included such luminaries as Louis Brandeis, Jane Addams and Woodrow Wilson – in 1912 created the Committee on Social Insurance.  The committee was the pet project of Isaac M. Rubinow, a Russian-born physician and policy specialist who wrote the landmark study “Social Insurance”.  Rubinow wanted to enact “sickness insurance” as a way to fight poverty.  In 1915, Rubinow’s committee wrote a bill to provide universal healthcare coverage.  According to JAMA, which supported the legislation, “No other social movement in modern economic development is so pregnant with benefit to the public.”  Congress even started debating the bill, noting that Germany had adopted universal healthcare in 1883.The AMA supported free universal healthcare in 1916.

Nearly a century ago in 1916, even the American Medical Association supported free universal healthcare. The organization had changed sides by the time President Franklin Delano Roosevelt proposed legislation as part of the New Deal in 1934.  Accusing the government of meddling with medicine, the Journal of the American Medical Association (JAMA) described universal healthcare as “Americanism versus sovietism”.

Also in 1916, Yale University economist Irving Fisher noted that “At present the United States has the unenviable distinction of being the only great industrial nation without compulsory health insurance.”  What’s more, Fisher — the first celebrity economist — believed that universal healthcare coverage was something that was certain to be adopted at that time.  “Within another six months, it will be a burning question.”