Stanford Law Review Online: Health Care and Constitutional Chaos

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Eric Segall and Aaron E. Carroll entitled Health Care and Constitutional Chaos: Why the Supreme Court Should Uphold the Affordable Care Act. Professor Segall and Dr. Carroll explore the constitutional and practical arguments for upholding the ACA:

The Supreme Court’s decision on the constitutionality of the Affordable Care Act (ACA) will likely be handed down on the last day of this year’s term. If the Court finds that the ACA—either in whole or in part—violates the Constitution, the health care industry will be shaken to its core. And, no matter what legal justification the Court uses to invalidate the ACA, the structure of constitutional law will be severely undercut. The resulting medical and legal chaos will be expensive, divisive, and completely unnecessary. Nothing in the text, history or structure of the Constitution warrants the Court overturning Congress’s effort to address our national health care problems.

They conclude:

The leading academic proponent of a decision overturning the ACA has conceded that the law is an attempt to “transform a sixth of the national economy.” Whatever can be said about that economic plan as a policy matter, there can be no question that (1) it is a regulation of commerce among the states; and (2) there is no textual or precedential constitutional principle that suggests Congress can’t use all reasonable tools to regulate that commerce, including the use of an individual mandate.

Read the full article, Health Care and Constitutional Chaos: Why the Supreme Court Should Uphold the Affordable Care Act by Eric Segall and Aaron E. Carroll, at the Stanford Law Review Online.

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2 Responses

  1. Andrew Rei says:

    This review is a very well thought out argument for why the SCOTUS should uphold the PPACA. When I heard Justice Scalia mention the broccoli argument, I knew it was a stupid argument but didn’t have the words for why it was. Now, because of this review, I do have the words. There is at least one other part of the PPACA that people are beginning to hear and it could be the reason why the Act could stand without the individual mandate: the 85% rule. That rule has already resulted in $1.3 billion in refunds to Americans. Simply stated, the 85% rule requires that money received should result in at least 85% of it being spent for “patient care”. Now, you may think, “wait a minute, Andrew…won’t insurance companies simply jack up their rates so that you’re paying $100 for an aspirin to make back the obscene profits that insurance companies make?” Another little-known portion of the Act forbids such activity. On Facebook, I see a picture of the compensation of the CEOs of insurance companies…all six listed made at least $10 million in compensation…under the PPACA, that would stop fairly quickly, thanks to the 85% rule.
    Another point to be made here is that judges EVEN MORE CONSERVATIVE THAN THE Feckless Five (Kennedy and the four Conservatives) all upheld the law in its entirety. With all of the shenanigans the GOP has tried lately, especially since the beginning of last year, it’s heartening to see that judges have remembered that they swore an oath to support and defend the Constitution; even Conservative judges, who you’d think would rule against anything that had a “sniff” of Liberalism, remembered that pledge. Right now, it’s probable that the SCOTUS will uphold the PPACA as a “peace offering” to the citizens of the United States to make up for their atrocious Citizens United decision in early 2010. The Feckless Five owe us that much. Politically speaking, GOP politicians are beginning to realize as I did when the arguments about the Act commenced that, if the Feckless Five shot down “Obamacare”, that act would hand a huge electoral victory to the Democrats in November. Now, it seems that some Republicans are beginning to have a “will to live” politically and are ready to represent the people of America, not their freeloading and fascist wealthy and big corporate masters. Oddly enough, another SCOTUS decision that should come this month, the legality of Arizona SB 1070, became mostly moot yesterday when President Obama issued the Executive Order to refrain from deporting young immigrants whose illegal immigrant parents brought them to the country not of their (the children’s) free will. A SCOTUS decision upholding Ariz. SB 1070 would also be disastrous to the GOP and they should “pray” that the SCOTUS strikes it down. That decision should be easy, as legal precedent has said that the federal government is in charge of immigration matters, not the “several states”. As with the PPACA situation, there’s no language in the Constitution that says that the states are in charge of immigration issues. A decision to strike down Ariz. SB 1070 will probably kill the immigration bills in other states, most notably Alabama, whose immigration law has been a financial and political disaster. When you add these things to the death wish of the Republican Party, we may very well see a Southern state or two vote for a Democratic president since Jimmy Carter ran against Gerald Ford.

  2. Joe says:

    “Now, because of this review”

    I guess for some people everything is at some time new. For some of us, the cottage industry of articles on each side makes nothing new under the sun here.

    As to upholding the 1070 law as disastrous, well, first, only part of it is under review. Second, I think there’s a good chance at least a part of what is under review will be upheld. Third, Republicans run good on opposition (see abortion), so I don’t know.