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Life of the Law School (1993- )

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Will Uncooperative Federalism Survive Nfib?, Abigail Moncrieff, Jonathan Dinerstein

Faculty Scholarship

In October Term 2012, the Supreme Court decided two cases that are fundamentally at odds: NFIB v. Sebelius and Douglas v. Independent Living Center of Southern California. In NFIB, the Court held that the federal government, at least under some circumstances, may not use the threat of reduced funding in cooperative federalism programs to require states to comply with federal statutory requirements. In Douglas, however, the Court indicated that private litigants should sue federal agencies under the Administrative Procedure Act if those agencies refuse to enforce federal statutory requirements against the states. The problem is that the withdrawal of funding …

The Commerce Power And Congressional Mandates, Dan T. Coenen

Scholarly Works

In National Federation of Independent Business v. Sebelius, a five-Justice majority concluded that the commerce power did not support enactment of the so-called “individual mandate,” which imposes a penalty on many persons who fail to buy health insurance. That ruling is sure to spark challenges to other federal laws on the theory that they likewise mandate individuals or entities to take certain actions. Federal laws founded on the commerce power, for example, require mine operators to provide workers with safety helmets and (at least as a practical matter) require mine workers to wear them. Some analysts will say that laws …

With Liberty And Access For Some: The Aca's Disconnect For Women's Health, Nicole Huberfeld

Law Faculty Scholarly Articles

This Article will scrutinize the separation of abortion from other aspects of women's health through the vehicle of the Patient Protection and Affordable Care Act (ACA). Part I will examine briefly why the fragmented nature of American healthcare has facilitated the separation of abortion from women's health, despite the fact that abortion is a medically necessary procedure for many women. To that end, this Part will explore the disjointed history of access to medicine juxtaposed against the strangely non-woman-centric nature of the fundamental rights at play in reproductive health. Part II will provide an overview of the ACA to explain …

Plunging Into Endless Difficulties: Medicaid And Coercion In National Federation Of Independent Business V. Sebelius, Nicole Huberfeld, Elizabeth Weeks Leonard, Kevin Outterson

Law Faculty Scholarly Articles

Until the 2011 Term, no Supreme Court decision since the New Deal had struck down an act of Congress as exceeding the federal spending power. The question of unconstitutionally coercive conditions was also novel. Indeed, no federal court had ever found any legislation to be an unconstitutionally coercive exercise of the spending power until the Court decided National Federation of Independent Business v. Sebelius (NFIB) on June 28, 2012. This Article proceeds as follows: Part I discusses the Affordable Care Act's Medicaid expansion in the context of the history and purpose of the Medicaid Act, paying particular attention to facts …

The Individual Mandate's Due Process Legality: A Kantian Explanation, And Why It Matters, Peter Brandon Bayer

Scholarly Works

In National Federation of Independent Business v. Sebelius, one of the most controversial decisions of this young century, an intensely divided Supreme Court upheld the Patient Protection and Affordable Care Act's most provocative feature-the Individual Mandate-under Congress's taxing power. In so doing, the Court rejected what appeared to be the Individual Mandate's more applicable constitutional premise-Congress's authority to regulate interstate commerce. Yet, neither the Constitution's Taxing Clause nor its Commerce Clause provide the ultimate answer as to whether Congress may regulate the multi-billion dollar healthcare market by compelling unwilling persons to buy private health insurance. The final determination of the …

Plunging Into Endless Difficulties: Medicaid And Coercion In National Federation Of Independent Business V. Sebelius, Elizabeth Weeks Leonard, Nicole Huberfield, Kevin Outterson

Scholarly Works

Of the four discrete questions before the Court in National Federation of Independent Business v. Sebelius, the Medicaid expansion held the greatest potential for destabilization from both a statutory and a constitutional perspective. As authors of an amicus brief supporting the Medicaid expansion, and scholars with expertise in health law who have been cited by the Court, we show in this article why NFIB is likely to fulfill that promise.

For the first time in its history, the Court held federal legislation based upon the spending power to be unconstitutionally coercive. Chief Justice Roberts’ plurality (joined for future voting purposes …

Nfib V. Sebelius: Proportionality In The Exercise Of Congressional Power, David Orentlicher

Scholarly Works

With its opinion on the constitutionality of the Affordable Care Act (ACA), the U.S. Supreme Court sparked much discussion regarding the implications of the case for other federal statutes. In particular, scholars have debated the significance of the Court's recognition of an anticoercion limit to the Spending Clause power.

When it recognized an anticoercion limit for the ACA's Medicaid expansion, the Court left considerable uncertainty as to the parameters of that limit. This essay sketches out one valuable and very plausible interpretation of the Court's new anticoercion principle. It also indicates how this new principle can address a long-standing problem …

How The Supreme Court Doomed The Aca To Failure, Thom Lambert

Faculty Publications

Now that the dust has settled somewhat, we may assess the likely consequences of the decision in National Federation of Independent Business v. Sebelius. This article briefly summarizes the reasoning underlying the decision's individual mandate ruling. It then considers what lies ahead for health insurance and medical care in the United States if the ACA, as modified by NFIB, is not repealed. Be warned: the picture isn't pretty.