Constitutional Law Commons^™

Tobacco Endgame Strategies: Challenges In Ethics And Law, Bryan P. Thomas, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

There are complex legal and ethical tradeoffs involved in using intensified regulation to bring smoking prevalence to near-zero levels. The authors explore these tradeoffs through a lens of health justice, paying particular attention to the potential impact on vulnerable populations. The ethical tradeoffs explored include the charge that heavy regulation is paternalistic; the potentially regressive impact of heavily taxing a product consumed disproportionately by the poor; the simple loss of enjoyment to heavily addicted smokers; the health risks posed by, for example, regulating nicotine content in cigarettes—where doing so leads to increased consumption. Turning to legalistic concerns, the authors explore …

Aids: Do Children With Aids Have A Right To Attend School?, Gilbert A. Partida

Pepperdine Law Review

No abstract provided.

Benign Sex Discrimination Revisited: Constitutional And Moral Issues In Banning Sex-Selection Abortion , George Schedler

Pepperdine Law Review

No abstract provided.

Religious Freedom And Women's Health - Litigation On Contraception, Timothy Stoltzfus Jost

Scholarly Articles

Not available.

Why Broccoli? Limiting Principles And Popular Constitutionalism In The Health Care Case, Mark D. Rosen, Christopher W. Schmidt

All Faculty Scholarship

Crucial to the Court’s disposition in the constitutional challenge to the Affordable Care Act (ACA) was a hypothetical mandate to purchase broccoli, which Congress never had considered and nobody thought would ever be enacted. For the five Justices who concluded the ACA exceeded Congress’s commerce power, a fatal flaw in the government’s case was its inability to offer an adequate explanation for why upholding that mandate would not entail also upholding a federal requirement that all citizens purchase broccoli. The minority insisted the broccoli mandate was distinguishable. This Article argues that the fact that all the Justices insisted on providing …

Can Compulsory Health Insurance Be Justified? An Examination Of Taiwan's National Health Insurance , Chuan-Feng Wu

Journal of Law and Health

Since a great paradox lies beneath the universal health insurance mandate debate in both Taiwan and the U.S., Taiwan’s experience clarifying the constitutionality of its compulsory universal health insurance program might provide valuable lessons to the U.S. The goal of this Article is to provide a theoretical basis, based upon the human rights impact assessment in public health policies and a Rawlsian theory of justice, to decide whether the restriction on individual liberty imposed by Taiwan’s compulsory NHI is constitutionally justified. An analytic four-step assessment is established to evaluate the NHI’s burden on individual liberties: (1) examine the importance, legitimacy, …

The Commerce Clause Implications Of The Individual Mandate Under The Patient Protection And Affordable Care Act , L. Darnell Weeden

Journal of Law and Health

The fundamental focus of this Article is whether the decision not to buy individual health insurance as required by Congress also qualifies as valid economic activity under the Commerce Clause. This question before the Court continues the modern battle regarding the scope of Congress’s power under the Commerce Clause, and the battle regarding the regulation of economic activity continues, irrespective of the Supreme Court decision regarding PPACA, because of the continuing impact of the Supreme Court’s holding in United States v. Lopez. Part II of this Article contends that the decision not to purchase health insurance is not to be …

The Best Of Both Worlds: Applying Federal Commerce And State Police Powers To Reduce Prescription Drug Abuse, Michael C. Barnes, Gretchen Arndt

Journal of Health Care Law and Policy

No abstract provided.

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 …

A Response To Beyond Separation: Professor Copeland’S Ambitious Proposal For “Integrative” Federalism, Elizabeth Weeks

Scholarly Works

No abstract provided.

Plunging Into Endless Difficulties: Medicaid And Coercion In National Federation Of Independent Business V. Sebelius, Elizabeth Weeks Leonard, Nicole Huberfield, Kevin Outterson

Scholarly Works

Of the four discrete questions before the Court in National Federation of Independent Business v. Sebelius, the Medicaid expansion held the greatest potential for destabilization from both a statutory and a constitutional perspective. As authors of an amicus brief supporting the Medicaid expansion, and scholars with expertise in health law who have been cited by the Court, we show in this article why NFIB is likely to fulfill that promise.

For the first time in its history, the Court held federal legislation based upon the spending power to be unconstitutionally coercive. Chief Justice Roberts’ plurality (joined for future voting purposes …

Whose Pregnancy Is It Anyway? The Intrusion Of Abortion-Related Informed Consent Laws And Compelled Medical Treatment On The Doctor-Pregnant Patient Relationship, Jennifer Jascoll

Student Works

No abstract provided.

Undue Burdens In Texas, Jennifer S. Hendricks

Publications

No abstract provided.

Appellate Division, Fourth Department - In Re Heckl, Michael Prisco

Touro Law Review

No abstract provided.

The Right To Refuse Life Sustaining Medical Treatment And The Noncompetent Nonterminally Ill Patient: An Analysis Of Abridgment And Anarchy, Elizabeth Helene Adamson

Pepperdine Law Review

No abstract provided.

The Power To Block The Affordable Care Act: What Are The Limits?, John D. Kraemer, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Though Supreme Court upheld most parts of the Affordable Care Act (ACA), Congress’ goals in enacting it could still be frustrated by non-implementation. During his campaign for president, Governor Romney promised “to issue Obamacare waivers to all fifty states.” While such blanket waivers would likely violate the Constitution’s Take Care Clause, the ACA does permit other waivers. To be lawful, however, they must meet certain requirements designed to enhance access and lower cost. A president who opposes the ACA might be able to limit its implementation by refusing to issue premium subsidies in federally operated insurance exchanges, and this might …

Reining In Abuses Of Executive Power Through Substantive Due Process, Rosalie Berger Levinson

Florida Law Review

Although substantive due process is one of the most confusing and controversial areas of constitutional law, it is well established that the Due Process Clause includes a substantive component that “bars certain arbitrary wrongful government actions ‘regardless of the fairness of the procedures used to implement them.’” The Court has recognized substantive due process limitations on law-enforcement personnel, public-school officials, government employers, and those who render decisions that affect our property rights. Government officials who act with intent to harm or with deliberate indifference to our rights have been found to engage in conduct that “shocks the judicial conscience” contrary …

The Policy Against Federal Funding For Abortions Extends Into The Realm Of Free Speech After Rust V. Sullivan, Loye M. Barton

Pepperdine Law Review

No abstract provided.

Health Care Providers Meet Erisa: Are Provider Claims For Misrepresentation Of Coverage Preempted, Jeffrey A. Brauch

Pepperdine Law Review

No abstract provided.

Just What The Doctor Ordered? How The Patient Safety And Quality Improvement Act May Cure Florida’S Patients’ Right To Know About Adverse Medical Incidents (Amendment 7), Kelly G. Dunberg

Florida Law Review

This Note addresses the impact of Florida’s Patients’ Right to Know About Adverse Medical Incidents (commonly known as Amendment 7) on the peer review process and the quality of healthcare in Florida. Enacted in 2004 as an amendment to the Florida Constitution, Amendment 7 provides citizens access to records and reports of past adverse medical incidents involving doctors, hospitals, and healthcare providers. Critics of Amendment 7 argue that peer review privilege protections are necessary to maintain high-quality healthcare in Florida, pointing to the need to encourage candid and vigorous evaluations by physicians of their colleagues. In contrast, Amendment 7 supporters …

Misappropriating Women’S History In The Law And Politics Of Abortion , Tracy A. Thomas

Seattle University Law Review

To examine the veracity of the political and legal claims of a feminist history against abortion, this Article focuses on one of the leading icons used in antiabortion advocacy—Elizabeth Cady Stanton. Stanton has, quite literally, been the poster child for FFL’s historical campaign against abortion, appearing on posters, flyers, and commemorative coffee mugs. Advocates claim that Stanton is a particularly fitting spokesperson because she was a “feisty gal who had seven children and was outspokenly pro-life.” They claim that she “condemned abortion in the strongest possible terms” and was “a revolutionary who consistently advocated for the rights of women, for …

The Calculus Of Accommodation: Contraception, Abortion, Same-Sex Marriage, And Other Clashes Between Religion And The State, Robin F. Wilson

Scholarly Articles

This Article considers a burning issue in society today— whether, and under what circumstances, religious groups and individuals should be exempted from the dictates of civil law. The “political maelstrom” over the Obama administration’s sterilization and contraceptive coverage mandate is just one of many clashes between religion and the state. Religious groups and individuals have also sought religious exemptions to the duty to assist with abortions or facilitate samesex marriages. In all these contexts, religious objectors claim a special right of entitlement to follow their religious tenets, in the face of equally compelling claims that religious accommodations threaten access and …

Comparativist-Structural Approaches To Interpretation Of The Post-Obamacare Spending Power, Michelle Biddulph, Dwight G. Newman

Cardozo Journal of International and Comparative Law

The U.S. Supreme Court's decision on the Affordable Care Act (ACA) has significant implications for the federal spending power, a topic that has received limited scholarly attention. The article argues that understanding this aspect of the ACA ruling is crucial for comprehending its impact on future federal programs and legislative approaches. By examining the spending power frameworks in Canada and Australia, the article highlights how different federal systems balance central authority with regional autonomy, offering valuable lessons for the U.S. legal framework.

Condoms: The New Medium Of Expression Protected By The First Amendment- People V. Andujar, Leodyne Calixte

Touro Law Review

No abstract provided.

Justice Roberts’ America, Robin West

Georgetown Law Faculty Publications and Other Works

Less than a week after the Roberts Court issued its decision in National Federation of Independent Business v Sebelius, Jeffrey Toobin, writing in The New Yorker, compared the first part of Chief Justice John Roberts's opinion, in which he found that the Commerce Clause did not authorize Congress to enact the "individual mandate" section of the Affordable Care Act (ACA) that requires all individuals to buy health insurance, with an Ayn Rand screed, noting that the pivotal sections of the argument were long on libertarian rhetoric but short on citations of authority. Roberts held (although "held" might be …

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.

Brief Of Amici Curiae Health Law & Policy Scholars And Prescription Policy Choices In Support Of Respondents On The Constitutional Validity Of The Medicaid Expansion, Kevin Outterson, Laura Hermer, Nicole Huberfeld, Elizabeth Weeks Leonard, Sara Rosenbaum, Sidney D. Watson

All Faculty Scholarship

The Medicaid expansion in Section 2001(a)(1)(C) of the Patient Protection and Affordable Care Act is one part of Congress’s comprehensive effort to expand access to health care coverage. This expansion is not revolutionary, but builds on many prior statutory amendments to Medicaid. Nor does it alter the voluntary nature of the Medicaid program – as before, States remain free to decline federal funding. The Petitioners and their amici have mischaracterized the expansion to obscure these facts, hoping this Court will unravel this hard-fought legislative enactment.

The question presented is whether Congress may offer States generous additional funding for Medicaid, with …

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 …

Childhood Obesity: Balancing The Nation's Interest With A Parent's Constitutional Right To Privacy, Denise Cohen

Cardozo Public Law, Policy & Ethics Journal

The note argues that governmental intervention into parental rights regarding childhood obesity is constitutionally justifiable under strict scrutiny, as it serves the compelling interests of both the child's well-being and societal welfare. While the constitutional right to privacy in parenting is fundamental, it is not absolute, and the growing public health crisis of childhood obesity necessitates narrowly tailored measures to hold parents accountable. The analysis proposes that existing legal frameworks, such as neglect statutes, can be effectively applied to address severe cases of childhood obesity, balancing individual rights with public health needs.

Free Riding On Benevolence: Collective Action Federalism And The Minimum Coverage Provision, Neil S. Siegel

Faculty Scholarship

Opponents of the minimum coverage provision in the Patient Protection and Affordable Care Act (ACA) argue that this “individual mandate” is beyond the scope of Congress’s commerce power because it regulates the “inactivity” of not purchasing health insurance. Defenders of the provision argue that it regulates the “activity” of participating in the interstate health care market, including by obtaining health care without paying for it. This Article argues that the distinction between inactivity and activity is irrelevant to the limits of the commerce power.

Drawing from the theory of collective action federalism that he recently articulated with Robert Cooter, the …