Health Care Reform

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.

by Nicole Flatow

When Fifth Circuit Judge Jerry Smith asked the Department of Justice for a three-page single-spaced memo defending its support for the long-established principle of judicial review, Attorney General Eric Holder did what was asked and responded.

He refrained from pointing out, as Jeffrey Toobin did, that Smith’s behavior during the hearing on a challenge to the Affordable Care Act was a “disgrace,” or as Orin Kerr did, that it was “highly inappropriate” for Smith to ask the DOJ to defend political comments by President Obama about the Supreme Court’s review of the health care law totally outside of the scope of the record in the case.

But in his dreams [and in The American Prospect], constitutional law professor Garrett Epps envisions a different kind of letter Holder might have sent, in which he refuses to respond on the basis that the Fifth Circuit has absolutely no jurisdiction in this case over the President of the United States:

Dear Judge Smith,

… This letter is a truthful response to this court's order and the issues of jurisdiction and judicial ethics it raised. Because it is truthful, it will never be filed with any court. Nonetheless, I will take this imaginary opportunity to state that the proper response to your order is a regretful refusal to comply on the grounds that it was made in excess of your jurisdiction, that it raises serious issues about your fitness to serve the United States in a position of honor and trust, and that it tends to bring discredit on the federal judiciary.

Epps goes on to explain that the very same decision that established judicial review, Marbury v. Madison, also established that “federal courts are courts of limited jurisdiction” and any attempt to go outside that jurisdiction deprives them of their power.

While presidents are political actors who have criticized the courts since Thomas Jefferson, judges are expected not to act as naked partisans, he explains.

He continues: