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Archive for March, 2012




Wendy Mariner On Severability: Laser Surgery, Friends & Family, Or Blow It Up?


March 30th, 2012
by Wendy Mariner

If the Supreme Court finds the individual mandate unconstitutional, will it strike down (sever) that provision alone, additional provisions regulating insurance, or the entire Affordable Care Act (ACA)?  That was the question before the U.S. Supreme Court in Wednesday morning’s oral arguments in the cases of National Federal of Independent Business v. Sebelius and Florida […]

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Timothy Jost On The Medicaid Coercion Debate: The Most Important Question Before The Court


March 29th, 2012
by Timothy Jost

Although the media and public have focused on the question of the constitutionality of the minimum coverage requirement, it is arguable that the most important question before the Court in the Affordable Care Act litigation is in fact the constitutionality of the statute’s Medicaid expansions.  The ACA provides that as of January 1, 2014, Medicaid […]

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Alice Noble And Mary Ann Chirba On Severability: Life Is A Highway


March 29th, 2012
 
by Alice Noble and Mary Ann Chirba

On Day Three of arguments about the constitutionality of the Affordable Care Act, the Supreme Court turned its attention to the question of severability. Should the Court find that the ACA’s minimum coverage requirement is indeed a proper exercise of Congress’s right to regulate interstate commerce, today’s arguments were all for naught. However, if the […]

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Timothy Jost: The Arguments Over Severability Of The Minimum Coverage Requirement


March 29th, 2012
by Timothy Jost

The central issue in the Supreme Court Affordable Care Act (ACA) litigation is the constitutionality of the minimum coverage requirement (individual mandate).  If the Court decides that the requirement is unconstitutional, it must next decide how much of the rest of the ACA must be stricken with it. It could strike the requirement and leave […]

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William Sage On The Last Day Of Supreme Court Arguments: Enough Frivolity For A While


March 29th, 2012
by William Sage

It’s finally over.  After nearly six hours of oral argument over the course of three days, the two cases challenging the constitutionality of the Affordable Care Act have been officially submitted to the Justices for decision.

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Renee Landers On The Individual Mandate: Towards A Single-Payer System Or Public Option?


March 29th, 2012
by Renée Landers

Tuesday’s oral arguments before the Supreme Court illustrated fundamental differences in attitudes about what Justice Kennedy described as “the relationship of the individual to the government”.  Tr. 11.  As Dahlia Lithwick points out, the arguments also are about the relationship between the individual and other people.

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Sara Rosenbaum: Trying To Make Sense Of The States’ Medicaid Coercion Arguments


March 28th, 2012
by Sara Rosenbaum

Despite Paul Clement’s brilliant representation of his clients throughout the oral arguments, the coercion doctrine itself that remains murky. Furthermore, whatever the doctrine might mean, its application to the Affordable Care Act’s Medicaid expansion appears to have raised grave doubts in the minds of many of the Justices.

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Marc Rodwin On The Individual Mandate: Congress Can Constitutionally Build On Private Insurance


March 28th, 2012
by Marc Rodwin

What options does Congress have to insure the public if the Supreme Court rules unconstitutional the Affordable Care Act mandate that individuals purchase insurance?  Could Congress create a national public insurance program funded through a payroll tax? Well, yes.  It already does.  Medicare covers all Americans over 65, (also individuals with permanent disabilities or end-stage […]

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William Sage On The Supreme Court ACA Arguments Day Two: Where No Law Has Gone Before?


March 28th, 2012
by William Sage

The much-anticipated argument over the constitutionality of the Affordable Care Act’s insurance centerpiece, the minimum coverage requirement or “individual mandate,” took place Tuesday morning.   It was an entertaining but messy affair, with several individuals often speaking at once and answers to questions frequently getting lost in subsequent comments and inquiries.   Analogies buzzed dangerously around the […]

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Alice Noble And Mary Ann Chirba On The Individual Mandate Argument: Beyond Uncompensated Care


March 28th, 2012
 
by Alice Noble and Mary Ann Chirba

“Reading between the lines” of the Supreme Court arguments seems to be everyone’s favorite pastime this week.  For health lawyers, these three days are heady times, a chance to revel in exquisitely crafted briefs and complex legal theories, consummately argued in a way that lifts the entire profession.  Rarely has the public paid such rapt […]

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Sara Rosenbaum On SCOTUS Day Two: Rashomon On The Potomac


March 27th, 2012
by Sara Rosenbaum

In Rashomon, the classic film exploration of truth, director Akira Kurosawa offers a meditation on the degree to which point of view colors reality.  A Rashomon of sorts played out during the second day of Supreme Court oral arguments on the Affordable Care Act.  For reasons that are not entirely clear other than pure sensationalism, […]

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The Minimum Coverage Requirement Oral Argument: A Comprehensive Discussion By Timothy Jost


March 27th, 2012
by Timothy Jost

The central issue in the Affordable Care Act (ACA) litigation, or at least the issue that has received the most media and public attention, is the constitutionality of the minimum coverage requirement, commonly called the individual mandate.  Section 5000A of the Internal Revenue Code, added by the ACA provides: An applicable individual shall for each […]

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Wendy Mariner On The Supreme Court’s Individual Mandate Oral Argument: The Search For A Limiting Principle


March 27th, 2012
by Wendy Mariner

The U.S. Supreme Court held oral arguments on Tuesday on the constitutionality of the minimum coverage provision of the Patient Protection and Affordable Care Act (ACA). Not since the New Deal has the Supreme Court considered such a fundamental challenge to the federal government’s power to regulate individuals. It is not surprising, therefore, that the […]

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Supreme Court Arguments on the ACA: Foundation-Funded Materials to Aid Understanding


March 27th, 2012
by Lee-Lee Prina

As most people have heard, the U.S. Supreme Court is hearing oral arguments this week (March 26-28) on the constitutionality of various aspects of the Affordable Care Act of 2010. People have scrambled for seats at the court, and, according to what I heard in a news report, some have paid others to stand in […]

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The Supreme Court Health Reform Arguments: William Sage On The Lessons Of Day One


March 27th, 2012
by William Sage

Day One of the oral arguments in the constitutional challenge to the Affordable Care Act put the Supreme Court’s many strengths on display.  Everyone came prepared, including the nine Justices, and presented their cases and questions cogently and persuasively.  Tim Jost’s outstanding blog post provides a detailed description and in-depth analysis of the Court’s discussion […]

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Wendy Mariner On The Supreme Court Health Reform Arguments: The Anti-Injunction Act


March 27th, 2012
by Wendy Mariner

If comments by the Justices of the United States Supreme Court are any indication of their likely decision, then the Court seems ready to decide whether the Patient Protection and Affordable Care Act’s (ACA) minimum coverage provision (also known as the individual mandate) is constitutional.  The Justices’ questions in Monday’s oral argument gave little indication […]

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Sara Rosenbaum On Day One Of The SCOTUS Health Reform Arguments: What Was That Medicaid Discussion?


March 26th, 2012
by Sara Rosenbaum

As has been widely reported, a sea of skepticism from all points on the Supreme Court’s ideological spectrum greeted arguments by Robert Long, who had been designated as the Court-appointed defender of the position that the Anti-Injunction Act (AIA), 26 U.S.C. § 7421(a), bars a pre-penalty challenge to the Affordable Care Act’s minimum essential coverage […]

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The Supreme Court ACA Arguments: Timothy Jost On The Anti-Injunction Act


March 26th, 2012
by Timothy Jost

The first day of Supreme Court oral arguments on the Affordable Care Act focused on the Anti-Injunction Act (AIA).  This statute, enacted in 1867, provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is […]

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Tidbits from the Grantmakers In Health Annual Meeting: Health Equity, Social Determinants of Health


March 26th, 2012
by Lee-Lee Prina

I always enjoy my annual trip to Grantmakers In Health’s (GIH’s) big conference. This year I did not have far to go—Baltimore. So, here is my “reporter’s notebook,” as Katie Couric would say. In this round-up post, I mention some interesting things I heard at the opening speech by GIH’s president and CEO and at […]

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Health Policy Brief: Medicare Premium Support


March 23rd, 2012
by Chris Fleming

A new Health Policy Brief from Health Affairs and the Robert Wood Johnson Foundation examines an approach for restructuring Medicare known as premium support. The concept means that the federal government would make a predetermined annual payment on behalf of each Medicare enrollee to the health plan of his or her choice–thus, “support” toward the […]

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