Law Commons^™

Tax Credits On Federally Created Exchanges: Lessons From A Legislative Process Failure Theory Of Statutory Interpretation, Mark Seidenfeld

Scholarly Publications

Opponents to the Patient Protection and Affordable Care Act (ACA or Act) have mounted yet another seemingly formidable challenge to basic provisions of the Act, focusing on whether the Act authorizes insurance premium tax credits for individuals who obtain insurance on an American Health Benefit Exchange (Exchange) established by the federal government. The argument against construing the Act to allow such tax subsidies depends largely on applying technical tools of statutory interpretation, usually associated with the Textual school of interpretation, to various provisions of the Act to discern that the best objective reading authorizes premium tax credits only to individuals …

The Individual Mandate Tax Penalty, Jeffrey H. Kahn

Scholarly Publications

In 2010, President Obama signed legislation that significantly altered the healthcare and health insurance markets in the United States. An integral part of that reform is the individual mandate, a provision that requires individuals to purchase and maintain healthcare insurance. Failure to maintain such coverage subjects an individual to a tax penalty. The Supreme Court upheld the constitutionality of that provision under Congress’s taxing power.

Despite the Supreme Court upholding the individual mandate, fundamental questions remain. This Article addresses the question of whether the use of a tax penalty to encourage taxpayers to do something that the government desires is …

The Spending Power And Environmental Law After Sebelius, Erin Ryan

Scholarly Publications

This article analyzes the Supreme Court’s new spending power doctrine and its impact on state-federal bargaining in programs of cooperative federalism, using the laboratory of environmental law. (It expands on the legal analysis in an Issue Brief originally published by the American Constitution Society on Oct. 1, 2013.) After the Supreme Court ruled in the highly charged Affordable Care Act case of 2012, National Federation of Independent Business vs. Sebelius, the political arena erupted in debate over the implications for the health reform initiative and, more generally, the reach of federal law. Analysts fixated on the decision’s dueling Commerce Clause …

Unheard Voices Of Domestic Violence Victims: A Call To Remedy Physician Neglect, Nat Stern, Karen Oehme, Ember Urbach

Scholarly Publications

No abstract provided.

Negotiating Federalism Past The Zero-Sum Game, Erin Ryan

Scholarly Publications

Countless instances of intergovernmental bargaining offer a means of understanding the relationship between state and federal power that differs from the stylized model of “zero-sum” federalism that has come to dominate political discourse. The zero-sum model sees winner-takes-all jurisdictional competition between the federal and state governments for power, emphasizing sovereign antagonism within the federal system. Yet real-world interjurisdictional governance show that the boundary between state and federal authority is really an ongoing project of negotiation, taking place on levels both large and small. Reconceptualizing the relationship between state and federal power as one heavily mediated by negotiation reveals just how …

Obamacare And Federalism’S Tug Of War Within, Erin Ryan

Scholarly Publications

This month, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution. In the 'Obamacare' cases, the Court considers whether the Affordable Care Act ('ACA') exceeds the boundaries of federal authority under the various provisions of the Constitution that establish the relationship between local and national governance. Its response will determine the fate of Congress’s efforts to grapple with the nation’s health care crisis, and perhaps other legislative responses to wicked regulatory problems like climate governance or education policy. Whichever way the gavel falls, the decisions will likely impact …

Spending Power Bargaining After Sebelius, Erin Ryan

Scholarly Publications

In the wake of the Supreme Court’s Affordable Care Act (ACA) decision, it’s easy to get lost in debate over the Chief Justice’s stated theory of the commerce power, or what precedential effect it will have under the Marks doctrine (given that his only supporters wrote in dissent). Still, the practical implications for existing governance is likely to be small, at least in the foreseeable future. After all, much of the debate over the individual mandate focused on how unprecedented it was: despite months of trying, nobody produced a satisfying example of this particular Congressional tool used in previous health, …

The Operation Of The Individual Mandate, Jeffrey H. Kahn

Scholarly Publications

In this article, Kahn describes the technical operation of omportion portions of the individual healthcare mandate, including the application of the penalty provision. Kahn finds that there are problems with the technical drafting of that provision and that serious gaps and ambiguities abound.

Free Rider: A Justification For Mandatory Medical Insurance Under Health Care Reform?, Jeffrey H. Kahn, Douglas A. Kahn

Scholarly Publications

Section 1501 of the Patient Protection and Affordable Care Act added section 5000A to the Internal Revenue Code to require most individuals in the United States, beginning in the year 2014, to purchase an established minimum level of medical insurance. This requirement, which is enforced by a penalty imposed on those who fail to comply, is sometimes referred to as the “individual mandate.” The individual mandate is one element of a vast change to the provision of medical care that Congress implemented in 2010. The individual mandate has proved to be controversial and has been the subject of a number …