Health Policy: National Issues Litigation Concerning Health Care Reform. Robert Schapiro April 11, 2012
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1 Health Policy: National Issues Litigation Concerning Health Care Reform Robert Schapiro April 11, 2012
2 Health Care Issues 50 million people without health insurance Federal and state laws require treatment Uninsured consume $116 billion in health care services (2008)
3 Patient Protection and Affordable Care Act (ACA) Signed March 23, 2010
4 Patient Protection and Affordable Care Act (ACA) Challenged March 23, 2010
5 Key Provisions of ACA Expansion of Medicaid Regulation of health insurance Guaranteed issue No exclusion for pre-existing condition Community rating No higher premiums based on medical condition Individual mandate Beginning in 2014 most people must purchase health insurance or pay fee
6 Litigation 26 states, many private litigants Key issue: Individual mandate Question: Within power of national government to require? Other issues Increased Medicaid burden on states Anti-Injunction Act Severability
7 Litigation ACA upheld by D.C. Circuit Sixth Circuit (Fourth Circuit) ACA held unconstitutional Eleventh Circuit U.S. Supreme Court heard argument March 26-March 28, 2012
8 Constitutional Background: Powers of National Government Tax Commerce clause/ Necessary and proper clause
9 Taxing Power U.S. Const. Art. I, Section 8 The Congress shall have Power To lay and collect Taxes... to pay the Debts and provide for the common Defence and general Welfare of the United States Broad Power Mandate in some sense tax But, not labeled as a tax
10 Commerce Clause/ Necessary and Proper Clause U.S. Const. Art. I, Section 8 The Congress shall have Power... To regulate Commerce... among the several States... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers
11 Key Arguments on Individual Mandate Regulation of economic activity Necessary part of general regulation of interstate commerce Slippery slope
12 What is Being Regulated Anti-ACA Inactivity Distinguish car insurance Pro-ACA Economic Activity Purchase of health care Health insurance industry Decision of how to pay for health care Anyway, where did this distinction come from?
13 What Next? (Slippery Slope) Anti-ACA Chrysler mandate Broccoli mandate Pro-ACA Those not necessary part of economic plan Violate individual right (not power issue) Stupid Unconstitutional Ban organ transplants Ban purchase or sale of food National vaccination mandate?
14 Severability U.S. Court of Appeals for Eleventh Circuit found individual mandate unconstitutional and severable United States and challengers agree that individual mandate essential to, not severable from Guaranteed issue Community rating Challengers broadly reject severability
15
16 Date Issue Time Allocated Arguers March 26 H&HS v. Florida Does the federal An/- Injunc/on Act bar challenges to the individual mandate at this /me 1.5 Hours Amicus curiae- 40 minutes Solicitor General- 30 minutes Respondents- 20 minutes March 27 H&HS v. Florida The cons/tu/onality of the individual mandate 2 Hours Solicitor General- 60 minutes Respondents Florida- 30 minutes Respondents Na/onal Federa/on of Independent Business- 30 minutes March 28 NFIB v. Sebelius; Florida v. H&HS Severability 1.5 Hours Pe//oners- 30 minutes Solicitor General- 30 minutes Amicus curiae- 30 minutes Florida v. H&HS Cons/tu/onality of the law's Medicaid expansion 1 Hour Pe//oners- 30 minutes Solicitor General- 30 minutes
17 Always 5-4 Kagan Sotomayor Scalia Thomas Kennedy Ginsburg Breyer Roberts Alito
18 Oral Argument Substantial skepticism among more conservative Justices about individual mandate Focus on burden on individual Not on overall scheme of regulation Concern about line-drawing
19 Oral Argument Skepticism about Medicaid, but linedrawing very difficult Severability huge problem Cleanest solutions Strike down individual mandate, find largely non-severable, or Uphold
20 Oral Argument Two World Views More liberal justices: post-new Deal mentality Government comprehensively regulates This regulation relatively non-intrusive Leave to democratic process More conservative justices Skepticism/cynicism about (federal) government Forcing someone to buy something is extremely intrusive/redistributionary
21
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