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health care financing reform

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: 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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Health Care Financing Reform (136): The Constitutional Issues

October 19, 2011

This post summarizes the constitutional issues that the Supreme Court will have to determine in addressing the constitutionality of the individual mandate contained in the 2010 federal health care law.

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Health Care Financing Reform (135): The Status of Constitutional Litigation on the Affordable Care Act

October 18, 2011

Six district courts and three circuit courts of appeal have ruled on the constituitonality of the Patient Protection and Affordable Care Act.  So far, the results are evenly divided.

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Health Care Financing Reform (134): Judge Graham's Opinion in Obama v. Thomas More Law Center

June 30, 2011

Here is a summary of Judge Graham's dissenting opinion from the decision of the Sixth Circuit in Obama v. Thomas More Law Center.  Judge Graham would strike down the individual mandate of the PPACA as unconstitutional.

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Health Care Financing Reform (133): Judge Sutton's Separate Concurring Opinion in Obama v. Thomas More Law Center

June 30, 2011

Judge Jeffrey Sutton concurred in the judgment of the Sixth Circuit that the Patient Protection and Affordable Care Act is constitutional on its face.  However, he did not join Judge Martin's opinion upholding the law, and he left open the door to future as-applied challenges to the individual mandate.

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Health Care Financing Reform (132): Judge Martin's Opinion in Obama v. Thomas More Law Center

June 30, 2011

Yesterday's post announced the decision of the Sixth Circuit in Obama v. Thomas More Law Center.  Judge Boyce Martin's opinion upholding the law tracks the federal government's legal arguments in support of the constitutionality of the Patient Protection and Affordable Care Act.

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