Law Commons^™

A Perfect Storm: Religion, Sex, And Administrative Law, Helen M. Alvare

St. John's Law Review

(Excerpt)

In order to propose a way forward toward better sexual and reproductive health regulation, which also avoids undercutting or crossing swords with religion, this Article will proceed as follows: Part I will paint with a broad brush the current state of sexual and reproductive health problems in the United States, focusing a bit upon younger Americans to whom SRA programs are addressed. It will highlight disparities according to race and socioeconomic conditions when these obtain. These are troubling on their face, but particularly troubling today at a time of perceived heightened racial and socioeconomic class tension in the United …

A Gun To Whose Head? Federalism, Localism, And The Spending Clause, Daniel S. Cohen

Dickinson Law Review (2017-Present)

President Trump’s executive order rescinding federal funds from “sanctuary jurisdictions” has brought a critical, but overlooked, question of constitutional law to the forefront of the political debate: how does the Spending Clause apply to local governments? The purpose of the Spending Clause is to empower the federal government to bargain with the states to enact policies it cannot enact itself. This power, however, is constrained within the confines of federalism. The Supreme Court has sought to restrict the Spending Clause by crafting the Dole-NFIB framework, a test to determine whether a federal grant has compromised federalism. At its …

Nfib V. Sebelius At 5, Nicole Huberfeld

Faculty Scholarship

Keeping up with health care reform is like running up a mountain of sand - every time you reach the top, -the terrain starts shifting. In this talk, I offer a snapshot of where we are in implementing the Patient Protection and Affordable Care Act ("ACA") to aid in understanding the significance of NFIB v. Sebelius' at five. I will situate the ACA2 within historical patterns in American health care reform. I have been asked to discuss the key points of the NFIB decision, after which I will share some of the research that I have performed for the past …

Considering Consequences: Autonomy’S Missing Half, Catherine A. Hardee

Pepperdine Law Review

In a subtle but discernible trend, courts, commentators, and policymakers increasingly use autonomy-based justifications to support expanding economic rights. Their use of autonomy, however, is inconsistent with the concept of traditional liberal autonomy that proponents of economic rights embrace. This is because many, if not most, economic choices have some measure of consequences ameliorated by state action. This Article exposes the conceptual incoherence of this approach and argues that these autonomy-based arguments are invalid when they fail to acknowledge the vital role consequences play in constituting liberal autonomy. It also demonstrates that the failure to account for consequences in determining …

Florida's Downtowns Are Free To Grow Local Broccoli…And Chickens (Sometimes), Sidney F. Ansbacher, Michael T. Olexa, Kathleen Maurer

Florida A & M University Law Review

The United States Supreme Court in National Federation of Independent Business v. Sebelius (Sebelius), famously invoked broccoli to limit the scope of Commerce Clause. All of the Justices used broccoli as a plot device to further their respective arguments answering whether the individual mandate to buy health insurance was constitutional. This article discusses the other end of the economic spectrum – local. We explicate Florida’s local government regulations of urban planting, growing, and selling of broccoli, as well as other fruits, vegetables, and animals. This requires a history of urban agriculture and local zoning laws before we discuss current laws …

Realsim Over Formalism And The Presumption Of Constitutionality: Chief Justice Roberts' Opinion Upholding The Individual Mandate, Wilson Huhn

Akron Law Review

In National Federation of Independent Business v. Sebelius, Chief Justice John Roberts cast the deciding vote to uphold the individual mandate of the Affordable Care Act. Speaking for the Court in Part IIIC of his opinion, Roberts found that the individual mandate was properly enacted pursuant to the General Welfare Clause. Two aspects of his opinion in particular drove this result. In deciding whether the individual mandate constitutes a “tax” within the meaning of the Constitution, the Chief Justice engaged in realistic analysis rather than legal formalism. In addition, Roberts reasoned that, if fairly possible, the statute had to be …

A Primer On Hobby Lobby: For-Profit Corporate Entities’ Challenge To The Hhs Mandate, Free Exercise Rights, Rfra’S Scope, And The Nondelegation Doctrine, Terri R. Day, Leticia M. Diaz, Danielle Weatherby

Pepperdine Law Review

Earlier this term, the United States Supreme Court heard oral argument in the consolidated case of Hobby Lobby Stores, Inc. v. Sebelius, the first of a litany of cases in which for-profit business entities are invoking the Religious Freedom Restoration Act ("RFRA") in support of their claim that the Affordable Care Act’s HHS Mandate violates their freedom of religion. In particular, these plaintiffs argue that the Mandate’s requirement that employer-provided health insurance covers the costs of contraceptives, the "morning after" pill, and other fertility-related drugs conflicts with their deeply-held religious belief that life begins at conception and is, therefore, unconstitutional. …

Jurisdictional Question In Hobby Lobby, The, Erin Morrow Hawley

Faculty Publications

Burwell v. Hobby Lobby Stores may well be the biggest case of the term. And by its own rules, the Supreme Court lacked jurisdiction. An obscure statute, the Anti-Injunction Act of 1867 (“the AIA”), imposes a pay-first requirement for federal tax challenges. The deeply held conventional wisdom is that the AIA is a jurisdictional statute, and there is a good argument that the AIA applies to the contraception mandate. As we learned from National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566 (2012), the best evidence of whether Congress intended the AIA to apply is the text. The mandate …

Pepperdine University School Of Law Legal Summaries, Hsuan Li

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Legal Summaries, Hsuan Li

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Spending Power And Environmental Law After Sebelius, Erin Ryan

Erin Ryan

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 …

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 …

Why The Affordable Care Act Authorizes Tax Credits On The Federal Exchanges, David Gamage, Darien Shanske

Articles by Maurer Faculty

This Essay refutes Adler’s and Cannon’s argument that the Affordable Care Act (“Obamacare”) does not authorize premium tax credits for insurance policies purchased from the federal healthcare Exchanges. Adler’s and Cannon’s argument is the basis of challenges in a number of ongoing lawsuits, including Oklahoma ex rel. Pruitt v. Sebelius and Halbig v. Sebelius. This Essay conducts a textual analysis of the Affordable Care Act and concludes that the text clearly authorizes premium tax credits for insurance policies purchased from the federal healthcare Exchanges.

On November 7th, 2014, the U.S. Supreme Court agreed to hear the appeal of the King …

Delegation And The Destruction Of American Liberties: The Affordable Care Act And The Contraception Mandate, Michael Barone, Jr.

Touro Law Review

No abstract provided.

The Likely Impact Of National Federation On Commerce Clause Jurisprudence, Robert J. Pushaw Jr., Grant S. Nelson

Pepperdine Law Review

In National Federation of Independent Businesses v. Sebelius, the Supreme Court exhaustively analyzed Congress’s constitutional power to enact the watershed Patient Protection and Affordable Care Act (ACA or “Obamacare”). The ACA imposes a “shared responsibility requirement,” popularly known as the “Individual Mandate” (IM), which forces Americans to buy medical insurance or pay a “penalty.” The ACA’s text and legislative history, as well as the public defenses of it by President Obama and his supporters, consistently described the IM as a valid exercise of Congress’s power “[t]o regulate Commerce . . . among the several States.” This reliance on the Commerce …

Environmental Law After Sebelius: Will The Court’S New Spending Power Limits Affect Environmental State-Federal Partnerships?, Erin Ryan

Scholarly Publications

This issue brief, invited by the American Constitution Society, analyzes the regulatory impacts of the new spending power doctrine in the Supreme Court’s 2012 health reform decision, National Federation of Independent Business v. Sebelius. In Sebelius, a plurality of the Supreme Court held that portions of the Affordable Care Act exceeded federal authority under the Spending Clause. With that holding, Sebelius became the first Supreme Court decision since the New Deal to limit an act of Congress on spending power grounds, rounding out the “New Federalism” limits on federal power first initiated by the Rehnquist Court in the 1990s. The …

Medicaid Expansion, The Patient Protection And Affordable Care Act, And The Supreme Court's Flawed Spending Clause Coercion Reasoning In National Federation Of Independent Business V. Sebelius, L. Darnell Weeden

Cleveland State Law Review

The issue to be addressed is whether the Patient Protection and Affordable Care Act’s (ACA or “Obamacare”) manifest goal of promoting the general welfare of the nation by encouraging states to expand their existing Medicaid plans is a coercive use of Congress’ power under the Spending Clause if the federal government permanently picks up at least 90 percent of the cost of the expansion. The Spending Clause grants Congress the power “to pay the Debts and provide for the . . . general Welfare of the United States.” To make certain that federal money given to the States is used …

May It Please The Court: Questions About Policy At Oral Argument, Cynthia K. Conlon, Julie M. Karaba

Northwestern Journal of Law & Social Policy

This Article examines the questions that Supreme Court Justices ask during oral argument. The authors content-coded questions asked in fifty-three cases argued during the October 2009, 2010, and 2011 terms—a total of 5,115 questions. They found that the Justices vary significantly in the extent to which they ask about different aspects of a case, including threshold issues, precedent, facts, external actors, legal argument, and policy. They also found that the Justices were more likely to ask policy-oriented questions in education cases than in constitutional cases that did not arise in a school setting. The authors included a case study of …

It's Not A Tax (Statutorily), But It Is A Tax (Constitutionally), Steve R. Johnson

Scholarly Publications

No abstract provided.

Amicus Brief In Support Of Neither Party In Sebelius V. Auburn Reg. Med. Ctr., No. 11-1231, Scott Dodson

Scott Dodson

This amicus brief in support of neither party in the merits case of Sebelius v. Auburn Regional Medical Center, No. 11-1231, urges the Supreme Court to decide the question presented (whether 42 U.S.C. § 1395oo(a)(3) permits equitable tolling) without resort to jurisdictional labels.

A Visual Guide To Nfib V. Sebelius, Colin Starger

All Faculty Scholarship

Though Chief Justice Roberts ultimately provided the fifth vote upholding the Affordable Care Act (ACA) under the Tax Power, his was also one of five votes finding the ACA exceeded Congress’ power under the Commerce Clause.

The doctrinal basis for Roberts’ Commerce Clause analysis was hotly contested. While Roberts argued that the ACA’s purported exercise of Commerce power “finds no support in our precedent,” Justice Ginsburg accused the Chief Justice of failing to “evaluat[e] the constitutionality of the minimum coverage provision in the manner established by our precedents.”

These diametrically opposed perspectives on “precedent” might prompt observers to ask whether …

Excerpts From Chief Justice Roberts' Opinion In Nfib V. Sebelius, Wilson Huhn

Akron Law Faculty Publications

In NFIB v. Sebelius the Supreme Court upheld the constitutionality of all but one of the provisions of the Patient Protection and Affordable Care Act. The opinion of Chief Justice Roberts is the controlling opinion in all respects. This is an editted summary of the Chief Justice's opinion.

The Decision Of The Supreme Court On The Constitutionality Of The Ppaca, Wilson Huhn

Akron Law Faculty Publications

This powerpoint presentation summarizes the opinion of Chief Justice Roberts in NFIB v. Sebelius, upholding the constitutionality of the Patient Protection and Affordable Care Act

Spending Power Bargaining After Sebelius, Erin Ryan

Erin Ryan

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, …

Excerpts From Chief Justice Roberts' Opinion In Nfib V. Sebelius, Wilson Huhn

Wilson R. Huhn

In NFIB v. Sebelius the Supreme Court upheld the constitutionality of all but one of the provisions of the Patient Protection and Affordable Care Act. The opinion of Chief Justice Roberts is the controlling opinion in all respects. This is an editted summary of the Chief Justice's opinion.

The Decision Of The Supreme Court On The Constitutionality Of The Ppaca, Wilson Huhn

Wilson R. Huhn

This powerpoint presentation summarizes the opinion of Chief Justice Roberts in NFIB v. Sebelius, upholding the constitutionality of the Patient Protection and Affordable Care Act

Negotiating Federalism Past The Zero Sum Game, Erin Ryan

Erin Ryan