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Delegation And The Destruction Of American Liberties: The Affordable Care Act And The Contraception Mandate, Michael Barone, Jr.

Touro Law Review

No abstract provided.

Advocacy In Health Proceedings In New York State, Kia C. Franklin

Touro Law Review

Individuals and communities navigating the healthcare system without an advocate often experience devastating outcomes and become burdened with unnecessary costs. These negative outcomes undermine the very utility of our healthcare system. The creation of a legal right to counsel for individuals with critical health related claims would meet an important and unmet need in our health and legal systems by empowering patients, improving the quality of health for many, and preventing unnecessary costs to the health care system.

A dedicated group of healthcare advocates, lawyers, public policy analysts, and other concerned individuals gathered together at Touro Law Center to strategize …

Chief Justice Roberts' Individual Mandate: The Lawless Medicine Of Nfib V. Sebelius, Gregory Magarian

Gregory P. Magarian

After the U.S. Supreme Court in National Federation of Independent Business v. Sebelius held nearly all of the Patient Protection and Affordable Care Act constitutional, praise rained down on Chief Justice John Roberts. The Chief Justice’s lead opinion broke with his usual conservative allies on the Court by upholding the Act’s individual mandate under the Taxing Clause. Numerous academic and popular commentators have lauded the Chief Justice for his political courage and institutional pragmatism. In this essay, Professor Magarian challenges the heroic narrative surrounding the Chief Justice’s opinion. The essay contends that the opinion is, in two distinct senses, fundamentally …

The Canadian Legal System, Steve Coughlan, Dale Darling

Articles, Book Chapters, & Popular Press

To really understand the influence of law on any activity, one must first understand the influences on the creation of law. This chapter sets the context for that discussion of law, by explaining the structural aspects of the legal system. Those aspects include the sources of law in Canada, the forms that law can take, and the parties who are primarily responsible for creating and shaping the law. This chapter will be structured around the discussion of four things: constitutional law, non-constitutional law, decision-makers in the legal system and, finally, a case study illustrating those features in action.

Coercion, Compulsion, And The Medicaid Expansion: A Study In The Doctrine Of Unconstitutional Conditions, Mitchell N. Berman

All Faculty Scholarship

The Supreme Court’s decision in National Federation of Independent Business v. Sebelius regarding the constitutionality of the Patient Protection and Affordable Care Act produced three main holdings concerning two critical provisions of the Act. The first two holdings concerned the “individual mandate” that requires most Americans to maintain “minimum essential” health insurance. The third holding concerned “the Medicaid expansion,” which expanded the class of persons to whom the states must provide Medicaid coverage as a condition for receiving federal funds under the Medicaid program. By a vote of 7-2, the Court struck down this provision as an impermissible condition on …

Constitutional Uncertainty And The Design Of Social Insurance: Reflections On The Aca Case, Michael J. Graetz, Jerry L. Mashaw

Faculty Scholarship

The Health Care Case is best understood as a legal attack on the means but not the goals of the health care legislation. This emphasis on means rather than ends and on state over federal powers potentially poses significant risks for the complex institutional arrangements for social insurance that now exist and may imply harmful constraints on how Congress can restructure these programs to better meet the needs of the American people in the twenty-first-century economy. Not coincidentally, the new constitutional framework announced in the ACA decision favors those who want to dismantle rather than strengthen the nation’s social insurance …

The Missing Due Process Argument, Jamal Greene

Faculty Scholarship

The argument that eventually persuaded five members of the Supreme Court to conclude that the individual mandate exceeded Congress’s power to regulate interstate commerce is one most observers originally considered frivolous. In that respect, it is similar to another potential argument against the mandate — that forcing someone to pay for insurance violates the liberty interests guaranteed by the Constitution’s Due Process Clause. The Commerce Clause argument was the centerpiece of the challenge to the mandate; the due process argument was not meaningfully advanced at all. This chapter suggests reasons why.