Law Commons^™

Charging Abortion, Milan Markovic

Faculty Scholarship

As long as Roe v. Wade remained good law, prosecutors could largely avoid the question of abortion. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has now placed prosecutors at the forefront of the abortion wars. Some chief prosecutors in antiabortion states have pledged to not enforce antiabortion laws, whereas others are targeting even out-of-state providers. This post-Dobbs reality, wherein the ability to obtain an abortion depends not only on the politics of one’s state but also the policies of one’s local district attorney, has received minimal scrutiny from legal scholars.

Prosecutors have broad charging discretion, …

Three Words And The Future Of The Affordable Care Act, Nicholas Bagley

Articles

As an essential part of its effort to achieve near universal coverage, the Affordable Care Act (ACA) extends sizable tax credits to most people who buy insurance on the newly established health care exchanges. Yet several lawsuits have been filed challenging the availability of those tax credits in the thirty-four states that refused to set up their own exchanges. The lawsuits are premised on a strained interpretation of the ACA that, if accepted, would make a hash of other provisions of the statute and undermine its effort to extend coverage to the uninsured. The courts should reject this latest effort …

Predicting The Fallout From King V. Burwell - Exchanges And The Aca, Nicholas Bagley, David K. Jones, Timothy Stoltzfus Jost

Timothy S. Jost

The U.S. Supreme Court's surprise announcement on November 7 that it would hear King v. Burwell struck fear in the hearts of supporters of the Affordable Cara Act (ACA). At stake is the legality of an Internal Revenue Service (IRS) rule extending tax credits to the 4.5 million people who bought their health plans in the 34 states that declined to establish their own health insurance exchanges under the ACA. The case hinges on enigmatic statutory language that seems to link the amount of tax credits to a health plan purchased "through an Exchange established by the State." According to …

Predicting The Fallout From King V. Burwell - Exchanges And The Aca, Nicholas Bagley, David K. Jones, Timothy Stoltzfus Jost

Articles

The U.S. Supreme Court's surprise announcement on November 7 that it would hear King v. Burwell struck fear in the hearts of supporters of the Affordable Cara Act (ACA). At stake is the legality of an Internal Revenue Service (IRS) rule extending tax credits to the 4.5 million people who bought their health plans in the 34 states that declined to establish their own health insurance exchanges under the ACA. The case hinges on enigmatic statutory language that seems to link the amount of tax credits to a health plan purchased "through an Exchange established by the State." According to …

The Independent Medicare Advisory Committee: Death Panel Or Smart Governing?, Robert Coleman

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

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 …

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 …

Healthcare Reform Hangs In The Balance, Lawrence O. Gostin

O'Neill Institute Papers

In this timely new briefing, Professor Lawrence O. Gostin, University Professor and Faculty Director, O’Neill Institute for National and Global Health Law, Georgetown University writes:

Prior to Tuesday’s arguments, I believed that the Supreme Court would uphold the health insurance purchase mandate by a comfortable margin. But now I believe that health care reform hangs in the balance. Here are the key arguments on which the future of President Obama’s health care reform depends: a greater freedom, cost-shifting, the health care market, acts versus omissions, limiting principles, the population-base approach, and what is necessary and proper. If the Court strikes …

Why The Affordable Care Act's Individual Purchase Mandate Is Both Constitutional And Indispensable To The Public Welfare, Lawrence O. Gostin

O'Neill Institute Papers

Integral to the Affordable Care Act's (ACA’s) conceptual design is the individual purchase mandate, which requires most individuals to pay an annual tax penalty if they do not have health insurance by 2014. Despite the vociferous opposition, the mandate is the most “market-friendly” financing device because it relies on the private sector. Ironically, less market-oriented reforms such as a single-payer system clearly would have been constitutional.

It is common sense for everyone to purchase health insurance and thus gain security against the potentially catastrophic costs of treating a serious illness or injury. However, Congress’ method of ensuring that everyone has …

Improving The Population’S Health: The Affordable Care Act And The Importance Of Integration, Lorian E. Hardcastle, Katherine L. Record, Peter D. Jacobson, Lawrence O. Gostin

O'Neill Institute Papers

Heath care and public health are typically conceptualized as separate, albeit overlapping, systems. Health care’s goal is the improvement of individual patient outcomes through the provision of medical services. In contrast, public health is devoted to improving health outcomes in the population as a whole through health promotion and disease prevention. Health care services receive the bulk of funding and political support, while public health is chronically starved of resources. In order to reduce morbidity and mortality, policymakers must shift their attention to public health services and to the improved integration of health care and public health. In other words, …

Interview With George Mitchell (4) By Andrea L’Hommedieu, George J. Mitchell

George J. Mitchell Oral History Project

Biographical Note
George J. Mitchell was born on August 20, 1933, in Waterville, Maine, to Mary Saad, a factory worker, and George Mitchell, a laborer. Senator Mitchell spent his youth in Waterville. After receiving his bachelor's degree from Bowdoin College in 1954, he served as an officer in the U.S. Army Counter Intelligence Corps until 1956. In 1960 he earned a law degree from Georgetown University. Mitchell worked for Senator Edmund S. Muskie as executive assistant and as deputy campaign manager during Muskie's 1972 presidential campaign. He later became U.S. senator (D-Maine) 1980-1995, Senate majority leader 1989-1995, and, upon his …

Interview With Diane Dewhirst (2) By Mike Hastings, Diane Dewhirst

George J. Mitchell Oral History Project

Biographical Note
Diane Dewhirst was born on May 28, 1957, in Framingham, Massachusetts, to Joan Priscilla Audubon and Robert Thornton Dewhirst. She grew up in Boston and Philadelphia. Her father worked in sales for an energy firm. Majoring in journalism at the University of Ohio and then transferring to Northwestern, she was graduated with a degree in political science. She worked on Jimmy Carter’s presidential campaign in 1976, as an intern for Common Cause, the Democratic National Committee, and briefly for ABC News on delegate selection rules, covering the 1984 presidential election. She then became press secretary for the Democratic …

Interview With Barbara Mikulski By Brien Williams, Barbara A. Mikulski

George J. Mitchell Oral History Project

Biographical Note
Barbara Ann Mikulski was born on July 20, 1936, and grew up in the Highlandtown neighborhood of East Baltimore, Maryland. She attended Mount Saint Agnes College and received her M.S.W. from the University of Maryland School of Social Work. She became a social worker, community organizer, and Baltimore city councilor, and she made an unsuccessful bid for the U.S. Senate in 1974 before winning election to the U.S. House of Representatives in 1976. After serving in the House for ten years, she ran for the U.S. Senate in 1986, becoming the first elected woman Democratic U.S. senator. She …

Interview With Jay Rockefeller By Brien Williams, John 'Jay' D. Rockefeller

George J. Mitchell Oral History Project

Biographical Note

John Davison “Jay” Rockefeller was born June 18, 1937, in New York to Blanchette Ferry (Hooker) and John D. Rockefeller III. He has served as a Democratic U.S. Senator representing West Virginia since 1985. Prior to that (1977-1985), he was governor of West Virginia. He is married to Sharon Percy, daughter of former Illinois Senator Charles “Chuck” Percy. He worked closely with Senator Mitchell on the 1993 health care reform package.

Summary

Interview includes discussion of: description of Senator Mitchell; differences in majority leader styles; Senator Byrd; story of President Clinton’s coming to the Democratic Caucus; their shared …

Interview With Dick Gephardt And Tom O’Donnell By Diane Dewhirst, Richard 'Dick' A. Gephardt, Thomas 'Tom' J. O'Donnell

George J. Mitchell Oral History Project

Biographical Note
Richard Andrew “Dick” Gephardt was born on January 31, 1941, in St. Louis, Missouri. He earned a B.S. from Northwestern University in 1962 and a law degree from the University of Michigan Law School in 1965. He was active in local Democratic politics and city government until 1976, when he was elected the U.S. House of Representatives, representing Missouri’s 3rd District until 2004, when he retired from the House and sought, unsuccessfully, the Democratic nomination for president, a nomination he also sought but failed to win in 1977. He served as House majority leader from 1989 to 1995 …

Interview With John Breaux By Brien Williams, John B. Breaux

George J. Mitchell Oral History Project

Biographical Note
John Berlinger Breaux was born in Crowley, Louisiana, on March 1, 1944. He was graduated from the University of Southwestern Louisiana at Lafayette in 1964 and Louisiana State University Law School in 1967. He served as assistant to U.S. Representative Edwin Edwards. After Edwards resigned in 1972, Breaux was elected to his seat in the U.S. Congress in a special election. He served in the House of Representatives until 1987, when he was elected to the Senate, where he served until 2005. In 1993, Senate Democrats elected him deputy majority whip. Since retiring from the Senate, he has …

Interview With Jason Grumet By Brien Williams, Jason S. Grumet

George J. Mitchell Oral History Project

Biographical Note
Jason S. Grumet was born February 25, 1967, in Rochester, New York, to Gerald and Madeleine Grumet. After high school, he spent a year traveling North America through a program with the National Audubon Society Expedition Institute. He received an environmental studies degree from Brown University and then worked for the New York State Department of Environmental Conservation. He attended Harvard Law School and ran an organization that worked for the Northeast State Air Pollution Control officials. At the time of this interview, he was president of the Bipartisan Policy Center.

Summary
Interview includes discussion of: Mitchell and …

Interview With Bob Rozen (2) By Diane Dewhirst, Robert 'Bob' M. Rozen

George J. Mitchell Oral History Project

Biographical Note
Robert Martin “Bob” Rozen was born on December 11, 1955, in Richmond, Kentucky, to Morris and Rosalyn (Eilenberg) Rozen. He majored in Soviet studies at Miami University (Ohio), graduating in 1977; he earned his law degree at George Washington University. He interned for Senator Wendell Ford as a legislative assistant for the Senate Finance Committee and then continued to work for him after law school. He also earned a master’s in tax law from Georgetown University. He worked on Senator Mitchell’s staff addressing tax, trade, and financial service issues.

Summary
Interview includes discussion: capital gains; Mitchell’s work to …

Interview With David Durenberger By Brien Williams, David F. Durenberger

George J. Mitchell Oral History Project

Biographical Note
David F. Durenberger was born August 19, 1934, in St. Cloud, Minnesota. He attended St. John’s University and the University of Minnesota Law School, graduating in 1959. Beginning in 1966, he was chief of staff to Minnesota Governor Harold LeVander. In 1978, he won a special election to finish the unexpired term of Senator Hubert Humphrey, was reelected twice, and held the seat until 1995. He served as chairman on the Select Committee on Intelligence, was vice chair of the Pepper Commission, and had a special interest in issues involving health care. At the time of this interview, …

Interview With Bob Rozen (1) By Diane Dewhirst, Robert 'Bob' M. Rozen

George J. Mitchell Oral History Project

Biographical Note
Robert Martin “Bob” Rozen was born on December 11, 1955, in Richmond, Kentucky, to Morris and Rosalyn (Eilenberg) Rozen. He majored in Soviet studies at Miami University (Ohio), graduating in 1977; he earned his law degree at George Washington University. He interned for Senator Wendell Ford as a legislative assistant for the Senate Finance Committee and then continued to work for him after law school. He also earned a master’s in tax law from Georgetown University. He worked on Senator Mitchell’s staff addressing tax, trade, and financial service issues.

Summary
Interview includes discussion of: Rozen’s working for Wendell …

Interview With Bob Dole By Brien Williams, Robert 'Bob' J. Dole

George J. Mitchell Oral History Project

Biographical Note
Robert J. “Bob” Dole was born July 22, 1923, in Russell, Kansas, and attended the University of Kansas. He served with distinction in World War II, and after the war earned his law degree at Washburn School of Law. He was elected as a Republican to the U.S. House of Representatives in 1961, serving until 1969, when he ran for the U.S. Senate. He won and held that seat until 1996, when he became the Republican Party’s 1996 presidential nominee. He was on the Finance Committee and was minority leader when George Mitchell was majority leader; in 1994 …

Interview With Jeff Bingaman By Brien Williams, Jesse 'Jeff' F. Bingaman

George J. Mitchell Oral History Project

Biographical Note
Jeff Bingaman grew up in Silver City, New Mexico. He was graduated from Harvard University and received his law degree from Stanford University. In 1978, he was elected New Mexico attorney general. In 1982, he was elected to the U.S. Senate and has served five terms to date. He has served on the Energy and Natural Resources Committee, the Finance Committee, the Health, Education, Labor and Pensions Committee, and the Joint Economic Committee.

Summary
Interview includes discussion of: how Mitchell positioned himself for the majority leader position; Mitchell’s leadership style; comparison of Mitchell to other majority and minority …

Interview With David Nexon By Brien Williams, David H. Nexon

George J. Mitchell Oral History Project

Biographical Note
David H. Nexon was born in Chicago, Illinois, on April 10, 1945. He received his bachelor’s degree from Harvard University and a Ph.D. in political science from the University of Chicago. From 1988 to 1983, he was senior budget examiner in the Health Branch of the Office of Management and Budget, where he was responsible for the Health Care Financing Administration. From 1983 to 2005, he served as the Democratic health policy staff director for the Senate’s Health, Education, Labor and Pensions Committee and as the senior health policy advisor to Senator Edward M. Kennedy. At the time …

Interview With Bill Bradley By Brien Williams, William 'Bill' W. Bradley

George J. Mitchell Oral History Project

Biographical Note
William Warren “Bill” Bradley was born July 28, 1943, in Crystal City, a suburb of St. Louis, Missouri. His parents were Warren and Susan Bradley, a banker and a teacher respectively. He excelled academically and athletically, as a basketball player, through high school. He entered Princeton in 1961, and in 1964 he was a member of the gold-medal Olympic basketball team before going on to be named the 1965 NCAA Player of the Year during his senior year. He won a Rhodes Scholarship to study at Oxford for two years. Upon returning to the U.S., he played professional …

Interview With Bob Packwood By Brien Williams, Robert 'Bob' W. Packwood

George J. Mitchell Oral History Project

Biographical Note
Robert W. “Bob” Packwood was born on September 11, 1932, in Portland, Oregon. He attended Willamette University, graduating in 1954, and the New York University School of Law, subsequently returning to Oregon to practice law. From 1963 to 1968, he was a member of the Oregon legislature, and in 1968 he won election to the U.S. Senate, serving five terms as a Republican. He chaired the Senate Finance Committee from 1985 to 1987 and was active in passing the Tax Reform Acts of 1986 and 1995. He resigned from his Senate seat in 1995. Later he founded Sunrise …

Interview With Harris Wofford By Brien Williams, Harris L. Wofford

George J. Mitchell Oral History Project

Biographical Note
Harris Llewellyn Wofford was born April 9, 1926, in New York City. He attended the University of Chicago and both Yale and Howard University Law Schools. During World War II he served in the Air Force. From 1954 to 1958 he served as an attorney for the Commission on Civil Rights, then in 1959 began teaching law at Notre Dame. He was an unofficial advisor to Martin Luther King, Jr. and an advisor to John F. Kennedy’s 1960 presidential campaign. He became Kennedy’s special assistant on civil rights and helped form the Peace Corps, serving as the Peace …

Interview With Bob Kerrey By Brien Williams, Joseph 'Bob' Robert Kerrey

George J. Mitchell Oral History Project

Biographical Note
Joseph Robert “Bob” Kerrey was born August 27, 1943, in Lincoln, Nebraska. He was graduated from Lincoln Northeast High School and entered the University of Nebraska – Lincoln, where he earned a degree in pharmacy in 1966. He served in the U.S. Navy after graduation until 1969 and was wounded in combat in Vietnam, receiving the Medal of Honor and the Bronze Star. He returned to Nebraska, and in 1982 he was elected governor. He was elected to the U.S. Senate in 1988 and was reelected for a second term in 1994. He ran in the Democratic presidential …

Interview With Chris Jennings By Diane Dewhirst, Christopher 'Chris' C. Jennings

George J. Mitchell Oral History Project

Biographical Note
Christopher Charles Jennings was born in Athens, Ohio, to Lucille and Eugene Jennings, both musicians. He grew up in Ohio and attended Miami University (Ohio). After graduating, he received a fellowship to work for Senator John Glenn in Washington, D.C. and later worked for Senators Melcher and Pryor. He worked on the Senate Aging Committee and became director by 1992. He also worked on the U.S. Bipartisan Commission on Comprehensive Health Care (the Pepper Commission). In 1992, he helped with Bill Clinton’s presidential campaign, focusing on domestic policy. He also worked on Clinton’s presidential transition team, then took …

Interview With Patrick Griffin By Brien Williams, Patrick J. Griffin

George J. Mitchell Oral History Project

Biographical Note
Patrick J. Griffin was born June 22, 1949, in New York to Daniel and Edith Griffin. He attended St. Peter’s College in New Jersey, then the University of Wisconsin-Milwaukee for graduate studies in urban policy. He worked as a Health, Education and Welfare fellow for a year, then spent a year on the Senate Budget Committee staff before becoming a member of Senator Byrd’s leadership staff, the Democratic Policy Committee staff, and later a Senate Floor staffer, where he met Senator Mitchell. He held the position of secretary of the Democratic Caucus, an elected position. He later started …

Interview With Sheila Burke By Brien Williams, Sheila P. Burke

George J. Mitchell Oral History Project

Biographical Note
Sheila Burke was born and raised in San Francisco, California. She earned a B.S. in nursing at the University of San Francisco (class of 1973) and a master’s degree in public administration from Harvard University. She started working for Senator Dole in May of 1977 to handle health issues on the Senate Finance Committee. A Democrat from California, she was hired due to her prior experience as a nurse with a hands-on understanding of patient care. She became deputy chief of staff in the leader’s office when Senator Dole became minority leader in 1985 and rose to chief …