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The Individual Mandate As Health Care Regulation: What The Obama Administration Should Have Said In Nfib V. Sebelius, Abigail R. Moncrieff
The Individual Mandate As Health Care Regulation: What The Obama Administration Should Have Said In Nfib V. Sebelius, Abigail R. Moncrieff
Law Faculty Articles and Essays
There was an argument that the Obama Administration's lawyers could have made—but didn't—in defending Obamacare 's individual mandate against constitutional attack. That argument would have highlighted the role of comprehensive health insurance in steering individuals' healthcare savings and consumption decisions. Because consumer-directed healthcare, which reaches its apex when individuals self-insure, suffers from several known market failures and because comprehensive health insurance policies play an unusually aggressive regulatory role in attempting to correct those failures, the individual mandate could be seen as an attempt to eliminate inefficiencies in the healthcare market that arise from individual decisions to self-insure. This argument would …
Common Law Constitutionalism, The Constitutional Common Law, And The Validity Of The Individual Mandate, Abigail R. Moncrieff
Common Law Constitutionalism, The Constitutional Common Law, And The Validity Of The Individual Mandate, Abigail R. Moncrieff
Law Faculty Articles and Essays
The paper proceeds as follows. Part I describes the constitutional common law and its interactions with common-law constitutionalism. Part II uses the fight over the constitutionality of the Patient Protection and Affordable Care Act (ACA) and its so-called "individual mandate" as a case study to flesh out the core differences between common-law constitutionalism and constitutional common law. Part III argues that a viable justification for a living constitution needs to embrace and defend the courts' essentially political nature, confronting head-on the (skyscraper) originalists' sense that courts should never do politics.
Safeguarding The Safeguards: The Aca Litigation And The Extension Of Structural Protection To Non-Fundamental Liberties, Abigail R. Moncrieff
Safeguarding The Safeguards: The Aca Litigation And The Extension Of Structural Protection To Non-Fundamental Liberties, Abigail R. Moncrieff
Law Faculty Articles and Essays
As the lawsuits challenging the Patient Protection and Affordable Care Act (ACA) have evolved, one feature of the litigation has proven especially rankling to the legal academy: the courts' incorporation of substantive libertarian concerns into their structural federalism analyses. The breadth and depth of scholarly criticism is surprising, especially given that judges frequently choose indirect methods, including the structural and processbased methods at issue in the ACA litigation, for protecting substantive constitutional values. Indeed, indirect protection of constitutional liberties is a well-known and well-theorized strategy, which one scholar recently termed "semisubstantive review" and another theorized as "judicial manipulation of legislative …