Jurisprudence Commons^™

“Religious Freedom,” The Individual Mandate, And Gifts: On Why The Church Is Not A Bomb Shelter, Patrick Mckinley Brennan

Working Paper Series

The Health and Human Services' regulatory requirement that all but a narrow set of "religious" employers provide contraceptives to employees is an example of what Robert Post and Nancy Rosenblum refer to as a growing "congruence" between civil society's values and the state's legally enacted policy. Catholics and many others have resisted the HHS requirement on the ground that it violates "religious freedom." They ask (in the words of Cardinal Dolan) to be "left alone" by the state. But the argument to be "left alone" overlooks or suppresses the fact that the Catholic Church understands that it is its role …

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 …

Developing A Durable Right To Health Care, Erin C. Fuse Brown

Faculty Publications By Year

The Patient Protection and Affordable Care Act’s (ACA) signature accomplishment was the creation of a statutory right to health care for the uninsured. This is a momentous change in policy, addressing one of the most vexing social issues of our time and affecting millions of people and billions of dollars of the U.S. economy. This ambition and the degree of societal and political debate leading up to the Act’s passage suggests that it is a “superstatute,” a rare breed of statute that can, among other things, create rights and institutions more typically thought to be the province of constitutional undertaking. …

The Moonscape Of Tax Equality: Windsor And Behyond, Anthony C. Infanti

Articles

This essay takes a critical look at the tax fallout from the U.S. Supreme Court’s decision in United States v. Windsor, which declared section three of the federal Defense of Marriage Act (DOMA) unconstitutional. The essay is important because, while other federal laws will apply to some same-sex couples some of the time, the federal tax laws are a concern for all same-sex couples all of the time. The essay is timely because it addresses the recently issued IRS guidance regarding the tax treatment of same-sex couples.

In this essay, I first describe the path that led to the decision …