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Columbia Law School

Health Law and Policy

Obamacare

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Constitutional Uncertainty And The Design Of Social Insurance: Reflections On The Obamacare Case, Michael J. Graetz, Jerry L. Mashaw Jan 2013

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

Faculty Scholarship

In 2010, Barack Obama signed the Patient Protection and Affordable Care Act (the ACA), a complex statute of more than nine hundred pages that fulfilled his goal of extending health-insurance coverage to virtually all Americans – an objective that previous U.S. presidents had sought and failed to achieve for a century. This legislation was hotly contested in the Congress, passing with the support of very few Republicans in the Senate and none in the House.

To broaden access to health insurance, the ACA relies primarily on two devices: (1) an expansion to Medicaid – a joint federal-state health-insurance program for – to ...


What The New Deal Settled, Jamal Greene Jan 2012

What The New Deal Settled, Jamal Greene

Faculty Scholarship

Not since George H.W. Bush banned it from the menu of Air Force One did broccoli receive as much attention as during the legal and political debate over the Patient Protection and Affordable Care Act ("ACA"). Opponents of the ACA have forcefully and repeatedly argued that if Congress has the power to require Americans to purchase health insurance as a means of reducing health care costs, then it likewise has the power to require Americans to eat broccoli. Broccoli is mentioned twelve times across the four Supreme Court opinions issued in the ACA decision – that's eleven more appearances ...


Constitutional Uncertainty And The Design Of Social Insurance: Reflections On The Obamacare Case, Michael J. Graetz, Jerry L. Mashaw Jan 2012

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

Faculty Scholarship

The gravamen of the constitutional complaint against the individual mandate is its supposed intrusion on personal freedom. But, when all was said and done, no one attacked a state government’s requirement that individuals must purchase health insurance, nor advanced any constitutional limitation on the states doing so. All we have is a holding that if the federal government wishes to do the same, it must exercise its powers to tax and spend, not its power to regulate. The ACA case then is best understood as a legal attack on the means but not the goals of the health care ...


What The New Deal Settled, Jamal Greene Jan 2012

What The New Deal Settled, Jamal Greene

Faculty Scholarship

This brief essay, written in conjunction with a symposium comparing the Franklin Delano Roosevelt and Obama presidencies, explores the absence of substantive due process arguments in the Affordable Care Act litigation and attendant public discourse. I argue that a substantive due process argument against the Act's individual mandate is at least as sound doctrinally as a federalism-based argument, but to the extent such arguments have been made, they have been rejected as frivolous. I suggest that this phenomenon may result in part from political obstacles to coalescing around and funding a substantive due process argument and in part from ...