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From the category archives:

Health Care

Why the Courts Must Presume that Economic Legislation is Constitutional

April 6, 2012

In yesterday's post I cited abundant authority in support of the principle that the courts must defer to the judgment of Congress in reviewing the constitutionality of economic legislation. Decisions under the Due Process, Equal Protection Clause, Spending Clause, and Commerce Clause all reveal the same idea, that the courts lack the power to second-guess […]

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Separation of Powers and the Presumption of Constitutionality: A Response to Justice Kennedy

April 5, 2012

At oral argument in the health care case Justice Anthony Kennedy suggested that the government bears the burden of persuading the Supreme Court that the Affordable Care Act is constitutional. He is precisely wrong. Like all purely economic legislation, the Affordable Care Act is presumed constitutional. This is a fundamental principle of the doctrine of Separation […]

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On Liberty: Kennedy and Verrilli in Oral Argument in Health Care Case

March 29, 2012

If there is one constitutional principle that Justice Anthony Kennedy is devoted to it is the principle of "individual liberty." In oral argument yesterday Solicitor General Donald Verrilli took an opportunity to address that concept.

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2011-2012 Supreme Court Term: Oral Argument by Amicus Curiae on the Anti-Injunction Act

March 26, 2012

The Supreme Court heard oral argument today on the issue of whether the Anti-Injunction Act applies to the individual mandate of the Affordable Care Act.  The transcript of oral argument is available here.  The bottom line is that it looks like the Supreme Court will proceed to the merits and decide whether the individual mandate […]

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Health Insurers' Position on the Individual Mandate

March 20, 2012

In the debate over the constitutionality of the federal health care reform law, health insurance companies have maintained a low profile.  The individual mandate was their idea; they wish that the mandate was stronger than it is; and now they are signalling that if the individual mandate is struck down by the Supreme Court, they […]

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Health Care Briefs: Amicus Briefs Attempting to Protect Specific Provisions of the Affordable Care Act

March 14, 2012

In the event that the Supreme Court strikes down the individual mandate of the Affordable Care Act, the Court will have to decide whether the remainder of the Act, or certain provisions of the Act, are "severable" from the individual mandate and therefore constitutional.  A number of organizations have filed amicus briefs asking the Court […]

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Health Care Briefs: Which Side Are You On?, continued. Et tu, Chamber of Commerce?

March 13, 2012

The amicus brief filed by the United States Chamber of Commerce on the issue of severability actually presents a highly persuasive argument in support of the constitutionality of the individual mandate in the Affordable Care Act.

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Health Care Briefs: The Single Payer Action Brief: Which Side Are You On?

March 12, 2012

Some amicus briefs remind me of that old Pete Seeger song, Which Side Are You On?

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Mary Brown, Lead Plaintiff in Health Care Case, Files for Bankruptcy In Part Because of Health Care Bills

March 10, 2012

Mary Brown, a lead plaintiff in the challenge against mandated health insurance, has filed for bankruptcy in part because of her husband's unpaid health care bills.  See Annie-Rose Strasser,  ThinkProgress, Lead Plaintiff In Health Care Reform Suit Files For Bankruptcy With Medical Debt.  There is also some question as to whether she is uninsured or […]

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Health Care Briefs: Reply Brief of Solicitor General Donald Verrilli on Anti-Injunction Act

March 1, 2012

Over the next couple of months I will be reviewing the briefs filed in the health care case pending before the Supreme Court of the United States.  Today's entry concerns a reply brief filed by Solicitor General Donald Verrilli regarding a jurisdictional issue arising under the federal Anti-Injunction Act.

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Birth Control Funding – Not Just a Moral Debate, But an Economic One

February 11, 2012

The economics of funding for birth control under a system of universal health care complicate the debate but simplify the solution.

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When I Was Young, Old People Were Poor. Now That I Am Old, Young People Are Poor

November 7, 2011

Pew Research Center released a study today on the wealth and income gap between the young and the old.  Today, people over 65 have a net worth that is 47 times greater than the net worth of adults under 35.  They even earn more money than young adults.

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