Health Law and Policy Commons^™

Maximizing Health Care Enrollment Through Seamless Coverage For Families In Transition: Current Trends And Policy Implications, Ann Marie Marciarille, Ken Jacobs, Laurel Lucia, Ann O’Leary

Faculty Works

The Affordable Care Act (ACA) builds on the employment-based health insurance system which is the bedrock of health insurance coverage for most Americans. When these Americans experience a change in their work or family lives, they are at risk for losing their job-based health insurance coverage. The health insurance exchanges established by the ACA provide an unprecedented opportunity to address one of the major sources of gaps in health insurance coverage: transitions in life that result in the loss of health insurance. The uninsured population is not static. Many people who are uninsured cycle in and out of coverage over …

Why Virginia's Challenges To The Patient Protection And Affordable Care Act Did Not Invoke Nullification, Robert S. Claiborne Jr.

Law Student Publications

This comment's focus is to convincingly demonstrate that neither the General Assembly's Health Care Freedom Act nor the Commonwealth's constitutional challenge to the minimum essential coverage provision were exercises of nullification. Part II of this comment relates a brief history of the ACA's passage alongside the Virginia Health Care Freedom Act's enactment and the Attorney General of Virginia Ken Cuccinelli's suit against Secretary of Health and Human Services Kathleen Sebelius. Part III defines nullification and further explains it through the historical instances when Virginia has considered the doctrine. Part IV demonstrates that-far from nullifying the minimum essential coverage provision-Virginia has …

Why Virginia's Challenges To The Patient Protection And Affordable Care Act Did Not Invoke Nullification, Robert S. Claiborne Jr.

University of Richmond Law Review

No abstract provided.

Constitutional Forbearance, A. Christopher Bryant

University of Richmond Law Review

No abstract provided.

Beyond The Doctrine: Five Questions That Will Determine The Aca's Constitutional Fate, Bradley W. Joondeph

University of Richmond Law Review

No abstract provided.

The Rhetoric Hits The Road: State Challenges To The Affordable Care Act Implementation, Elizabeth Weeks Leonard

University of Richmond Law Review

No abstract provided.

“Early-Bird Special” Indeed!: Why The Tax Anti-Injunction Act Permits The Present Challenges To The Minimum Coverage Provision, Michael C. Dorf, Neil S. Siegel

Cornell Law Faculty Publications

In view of the billions of dollars and enormous effort that might otherwise be wasted, the public interest will be best served if the Supreme Court of the United States reaches the merits of the present challenges to the Patient Protection and Affordable Care Act (ACA) during its October 2011 Term. Potentially standing in the way, however, is the federal Tax Anti-Injunction Act (TAIA), which bars any “suit for the purpose of restraining the assessment or collection of any tax.” The dispute to date has mostly turned on the fraught and complex question of whether the ACA’s exaction for being …

Constitutional Newspeak: Learning To Love The Affordable Care Act Decision, A. Christopher Bryant

Faculty Articles and Other Publications

In his classic dystopian novel, 1984, George Orwell imagines a world in which language is regularly contorted to mean its opposite - as in the waging of war by the Ministry of Peace and infliction of torture by the Ministry of Love. A core claim of Orwell's was that such abuse of language - which in his novel he labeled "Newspeak"-would ultimately channel thought. Whatever the merits of this claim as a theory of linguistics, constitutional developments too recent to be called history demonstrate that as a practical matter Orwell was on to something. The Court's June 28 decision both …

Constitutional Forbearance, A. Christopher Bryant

Faculty Articles and Other Publications

This essay begins by developing the concept of constitutional forbearance and exploring the role it plays in the craft of good judging. This first Part also illustrates what is meant by constitutional forbearance by recovering a forgotten but illustrative example from a century ago. Part II then argues that the need for forbearance has at present become unusually acute. Finally, in Part III this essay identifies some of the qualities of the Obama care cases that make them such singular opportunities for the exercise of this much needed judicial virtue and answers some anticipated objections to thinking about the cases …

The Health Care Cases And The New Meaning Of Commandeering, Bradley W. Joondeph

Patient Protection and Affordable Care Act Litigation

The Supreme Court’s decision in the Health Care Cases to sustain the central provisions of the Affordable Care Act (or ACA) was hugely important in several ways. Most commentators have focused on the Court’s upholding of the ACA’s minimum coverage provision. But the Court’s Medicaid holding—that the ACA coerced (and thus commandeered) the states by making their preexisting Medicaid funds contingent on the states’ expanding their programs—may actually be more significant as a matter of constitutional law.

The basic thesis of this article is that, in finding the ACA’s Medicaid expansion provisions coercive, the Court has re-conceptualized what constitutes a …

How The Supreme Court Doomed The Aca To Failure, Thom Lambert

Faculty Publications

Now that the dust has settled somewhat, we may assess the likely consequences of the decision in National Federation of Independent Business v. Sebelius. This article briefly summarizes the reasoning underlying the decision's individual mandate ruling. It then considers what lies ahead for health insurance and medical care in the United States if the ACA, as modified by NFIB, is not repealed. Be warned: the picture isn't pretty.

Rights To Health Care In The United States: Inherently Unstable, David Orentlicher

Scholarly Works

No abstract provided.

Litigating Federal Health Care Legislation And The Interstices Of Procedure,, Wendy Collins Perdue

Law Faculty Publications

Forward to the 2012 Allen Chair Symposium issue, focused on the litigation challenges to the Patient Protection and Affordable Care Act ("ACA").

Gender, Family, And Work, Marcia L. Mccormick

All Faculty Scholarship

The country has prohibited sex discrimination since the 1960’s, but society continues to view women and men differently because women give birth, breastfeed, and are traditional caregivers. This article takes a historical look at court decisions and legislative efforts to address equality where men and women are not similarly situated and also explores recent developments and current debates, such as caregiver discrimination, lactation rooms and breaks, and the Affordable Care Act’s contraceptive mandate. Despite the abundance of legislation and court decisions over the past forty years, much progress still needs to be made.

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 …

The Affordable Care Act Individual Coverage Requirement: Ways To Frame The Commerce Clause Issue, Wendy K. Mariner

Faculty Scholarship

No abstract provided.

Obamacare's (3) Day(S) In Court, Abigail Moncrieff

Faculty Scholarship

Before the oral arguments in late March, the vast majority of legal scholars felt confident that the Supreme Court of the United States would uphold the individual mandate against the constitutional challenge that twenty-six states have levied against it. Since the oral argument, that confidence has been severely shaken. This article asks why legal scholars were so confident before the argument and what has made us so concerned since the argument. The article posits that certain fundamental characteristics of health insurance - particularly its unusual role in steering healthcare consumption decisions, which distinguishes health insurance from standard kinds of indemnity …

Cost-Benefit Federalism: Reconciling Collective Action Federalism And Libertarian Federalism In The Obamacare Litigation And Beyond, Abigail Moncrieff

Faculty Scholarship

The lawsuits challenging Obamacare's individual mandate have exposed a rift in federalism theory. On one side of the divide is a view that the national government ought to intervene - and ought to be constitutionally permitted to intervene - whenever the states are "separately incompetent" to regulate. This is the view that Robert Cooter and Neil Siegel recently theorized as "collective action federalism." On the other side of the divide is a view that federalism exists for reasons other than efficiency of regulation and particularly that the Founders created the federal structure for the protection of individual liberty. According to …

The Anti-Injunction Act And The Individual Mandate, Steve R. Johnson

Scholarly Publications

The Supreme Court will soon consider challenges to constitutionality of the so-called individual mandate portion of the Patient Protection and Affordable Care Act of 2010 (PPACA). It is important for the nation that the Court render a decision on the merits. This could be derailed, however, were the Court to dispose of the case by holding that the Anti-Injunction Act (AIA) and the Declaratory Judgment Act (DJA) preclude pre-enforcement review. Disposition on those grounds would subject the federal government, states, businesses, and individuals to years of additional uncertainty, inconvenience, and expense.

Fortunately, that threat to resolution on the merits can …

The Benefits Of Opt-In Federalism, Brendan S. Maher

Faculty Scholarship

The Affordable Care Act (“ACA”) is a controversial and historic statute that mandates people make insurance bargains. Unacknowledged is an innovative mechanism ACA uses to select the law that governs those bargains: opt-in federalism.

Opt-in federalism – in which individuals choose between federal and state rules – is a promising theoretical means to make and choose law. This Article explains why, and concludes that the appeal of opt-in federalism is independent of ACA. Whatever the statute’s constitutional fate, future policymakers should consider opt-in federalist approaches to answer fundamental but exceedingly difficult questions of health and retirement law.

Can Congress Make You Buy Broccoli? And Why That's A Hard Question, Wendy K. Mariner, George J. Annas, Leonard H. Glantz

Faculty Scholarship

The continuing uncertainty over the constitutionality of the Affordable Care Act (ACA), illustrated by conflicting trial court rulings and scholarly commentaries, raises the question of why this constitutional question is so hard to answer. There are at least four reasons.

The Aca, The Large Group Market, And Content Regulation: What’S A State To Do?, Amy B. Monahan

Saint Louis University Journal of Health Law & Policy

No abstract provided.

Can Congress Make You Buy Broccoli? And Why It Doesn’T Matter, David Orentlicher

Scholarly Works

No abstract provided.

Controlling Health Care Costs Through Public, Transparent Processes: The Conflict Between The Morally Right And The Socially Feasible, David Orentlicher

Scholarly Works

No abstract provided.

Constitutional Challenges To The Health Care Mandate: Based In Politics, Not Law, David Orentlicher

Scholarly Works

No abstract provided.

Shifting The Conversation: Disability, Disparities And Health Care Reform, Elizabeth Pendo

All Faculty Scholarship

This piece is an invitation to consider health care reform as a political shift in our thinking about the barriers and inequalities experienced by people with disabilities in our health care system. Traditionally, when these issues have been addressed, the predominant approach has been through a civil rights framework, specifically the Rehabilitation Act of 1973 and the American with Disabilities Act of 1990 (ADA). Now, the Patient Protection and Affordable Care Act of 2010 (PPACA) offers a new approach. This essay will outline the barriers to health and health care experienced by people with disabilities, drawing upon my ongoing research …

Challenging Supremacy: Virginia's Response To The Patient Protection And Affordable Care Act, Matthew R. Farley

University of Richmond Law Review

No abstract provided.

Rhetorical Federalism: The Value Of State-Based Dissent To Federal Health Reform, Elizabeth Weeks Leonard

Scholarly Works

This Article makes the affirmative case for the widespread trend of state resistance to the recently enacted, comprehensive federal health reform law, the Patient Protection and Affordable Care Act of 2010, or ACA. A significant number of states have engaged in various forms of objection to the new federal laws, including filing lawsuits against the federal government, enacting laws providing that ACA will not apply to residents of the state, and refusing to cooperate with implementing the new laws. This Article identifies reasons why those actions should not be disregarded simply as Tea Party antics or election-year gamesmanship but instead …

Health Insurance Politics In Federal Court, Wendy K. Mariner, George J. Annas

Faculty Scholarship

Having been outmaneuvered in Congress with the passage of the Patient Protection and Affordable Care Act (“Affordable Care Act,” or ACA), Republicans have taken their case to federal court, arguing that the law's key provision, the individual mandate to purchase health insurance, is unconstitutional. This argument has been made most prominently by attorneys general from 20 states in a Florida federal court and by the Commonwealth of Virginia in a Virginia federal court. In early August, federal district court judge Henry Hudson decided that the Virginia challenge deserves a hearing,1 thereby giving the constitutional argument an aura of respectability …

State Constitutionalism And The Right To Health Care, Elizabeth Weeks Leonard

Scholarly Works

This Article examines state constitutions and health care rights. Notably, close to a third of states’ constitutions recognize health while the U.S. Constitution contains no reference. Ample scholarly commentary exists on the absence of a right to health care under the U.S. Constitution but little attention has been paid to state constitutional law. This Article begins by explaining the absence of a federal right and the rationale for looking to state constitutional protections for health. The Article then provides a comprehensive survey of state constitutional provisions and judicial decisions enforcing or interpreting them. The survey reveals certain common themes and …