Affordable Care Act

  • May 1, 2012

    by Jeremy Leaming

    Though not nearly as lame as Congress, approval ratings of the U.S. Supreme Court are waning. At least according to a new poll by the Pew Research Center for the People & the Press, which shows the high court’s favorability has “reached a quarter-century low.” (An April Gallup survey shows only 17 percent approve of Congress.)  

    The Pew survey, conducted after the Supreme Court’s high-profile consideration of the Obama administration’s landmark health care reform law, shows that 53 percent favor the high court, down from 58 percent in 2010 “and the previous low” of 57 percent in 2005 and 2007. The Pew Research Center says there “are virtually no partisan differences in views of the Supreme Court,” though noting that 56 percent of Republicans approve of the Court, while 52 percent of Democrats and independents hold a favorable view. Republicans’ favorable view of the Court dropped “steeply between 2009 and 2010, with the appointments of Sonia Sotomayor and Elena Kagan,” while Democrats’ favorable view of the Court has declined since 2011.

    The survey also continued to show a sharp divide between supporters and opponents of the Affordable Care Act.

    The oral argument in the case challenging the constitutionality of the health care reform law drew widespread coverage, with several of the high court’s right-wing justices garnering criticism for their apparent lack of understanding of the how the health care insurance market works. Following last week’s oral argument in the case over Arizona’s rabid anti-immigrant law, a string of commentators also noted that Justice Antonin Scalia had a wobbly grasp of the complexity of the federal immigration law.

  • April 30, 2012

    by Nicole Flatow

    Pop quiz: What is the central constitutional provision at issue in the Supreme Court’s review of the Affordable Care Act? If you said the Commerce Clause, you’re one step ahead of many of the tea partiers who protested outside the Supreme Court during oral arguments.

    Responding to questions from staff at the Constitutional Accountability Center, tea partiers bearing signs that read “Obamacare is unconstitutional” couldn’t name any part of the Constitution that they believe the law violates.

    “Well, I should know better. I should be able to answer that question and I can’t,” said one protester in a video produced by CAC, “Tea Party vs. The Constitution: ObamaCare Edition.”

    “If you read the Constitution, there’s nothing in there about health care,” said another.

    Others, when told that the Commerce Clause is what authorized Congress to pass the law, said the Commerce Clause was “added later” and was not part of the original Constitution.

    And when the interviewer tried to correct them by pointing out that the Commerce Clause is in Article 1, Section 8 of the original Constitution, one protester responded, “There’s no use in arguing about that because I don’t think either of us know for sure.”

    Watch the full video, including facts from experts who know what the Constitution actually says, below:

  • April 27, 2012

    by Jeremy Leaming

    For what feels like decades, reporters, pundits, and ideologues, mostly on the right, but some on the left, have lauded Supreme Court Justice Antonin Scalia for his wit, pointed oral argument questioning and allegedly brilliant writing. But those plaudits, in light of the justice’s performances during oral argument in cases challenging health care reform and Arizona’s racial profiling law, are wobbly at best, bordering on delusional.

    In reality Scalia increasingly has difficulty, as The Washington Post’s Dana Milbank recently noted, containing his rabid partisanship. It’s unbecoming. During the Affordable Care Act oral argument it appeared, at times, that his only preparation involved reading right-wing blogs railing about the slippery slope to regulations mandating purchases of broccoli and gym memberships. At oral argument in Arizona v. U.S., regarding challenges to several portions of the state’s anti-immigrant law, Scalia “left no doubt from the start that he was a champion of the Arizona crackdown and that he would verbally lacerate anybody who felt otherwise,” Mibank wrote.

    Milbank continued, “Scalia’s tart tongue has been a fixture on the bench for years, but as the justices venture this year into highly political areas such as health-care reform and immigration, the divisive and pugilistic style of the senior associate justice is very much defining the public image of the Roberts Court.”

    And it’s not a flattering image. Not only does Scalia come off as a ringleader of right-wing hacks in robes, he increasingly comes off as clueless or heartless. During the health care oral argument, questions from Scalia and some of the other right-wing justices prompted a string of commentators to question whether the justices understood the health care insurance market.

  • April 27, 2012
    Guest Post

    By Amanda Frost, Professor of Law, American University, Washington College of Law


    Opponents of the health care reform law argue that it takes away their liberty to make choices about health care.  In their brief to the Supreme Court, the twenty-six states challenging the constitutionality of the so-called individual mandate – the provision requiring those who can afford it to purchase health insurance – claim that it undermines “the very liberty that the Constitution was designed to protect.”  But in fact the legal questions before the Court have almost nothing to do with liberty when it comes to health care or health insurance, as the challengers’ own concessions make clear. 

    The states challenging the law do not deny that almost everyone needs health care at some point in their lives, and they even agree that the government can make people pay for health care through health insurance.  They take issue only as to when the government can compel that purchase, arguing that no one can be forced to buy insurance before they need to pay for health care.  The challengers also admit that the federal government could force everyone to pay higher taxes to cover the health care costs of those without insurance.  Nor do they deny that the federal government can require doctors to provide emergency care to those without health insurance, and then to allow those doctors to pass along the costs of that care to the rest of us through higher insurance premiums and taxes – indeed, that is how our system currently operates.  Finally, the challengers acknowledge that the states themselves could pass laws mandating that all their citizens purchase health insurance, as Massachusetts has done. 

    All that is really at stake, then, is whether the federal government has the constitutional authority to require individuals to purchase health insurance before they need to pay for their health care.   That “freedom” seems far from the heady liberty interest that opponents of the law claim this case is all about.

  • April 16, 2012

    by Jeremy Leaming

    Plenty of legal scholars and others have been unmoved by the primary argument leveled against the Affordable Care Act, the broccoli argument, and justifiably so.

    But after oral argument in HHS v. Florida, where Supreme Court Justices Antonin Scalia and Samuel Alito appeared to embrace the simplicity of the argument – if Congress can make you purchase health care insurance, there will be no limiting principle on congressional power and it will soon mandate us all to buy broccoli – expressions of astonishment and concern abound.

    In a piece for The Atlantic, Harvard Law School Professor Einer Elhauge details why the broccoli argument is not only wobbly, but dangerously flawed.

    Scalia cited the the broccoli concern during oral argument when demanding the government’s lawyer to articulate a limiting principle on Congress’s power to regulate commerce among the states.  

    Elhauge notes first that the limiting principle has already been articulated the Supreme Court as follows: “a federal law must (1) involve economic regulation (2) that addresses a national problem (3) that affects interstate commerce.”  

    Walter Dellinger, former Solicitor General, articulated a limiting principle slightly differently during an ACS briefing on oral argument, saying “the power to regulate commerce among the states extends to regulation of those purchases, which are inevitable, of goods and services, which will be provided to the individual even if they have made no arrangements to pay for them, where the cost will be shifted to others in a way that undermines an undoubtedly constitutional regulatory scheme.”

    It’s the limiting principle already adopted by the Supreme Court through other cases that the challenges are itching to change, Elhauge says. (In an ACS Issue Brief, Simon Lazarus explains the radical nature of the challengers’ agenda to topple health care reform.)

    “They want the justices to read into the Commerce Clause a new limiting principle, one that bars laws mandating the purchase of any product,” Elhauge writes. “But however attractive that kind of new limiting principle might seem, it cannot be inserted into the Constitution by judicial fiat when it lacks support in constitutional text, history, or precedent.”