Health Affairs

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... Read the rest of this entry »

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... Read the rest of this entry »

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... Read the rest of this entry »

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... Read the rest of this entry »

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.

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.

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.

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... Read the rest of this entry »

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... Read the rest of this entry »

“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... Read the rest of this entry »

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,... Read the rest of this entry »

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... Read the rest of this entry »

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... Read the rest of this entry »

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... Read the rest of this entry »

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... Read the rest of this entry »

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... Read the rest of this entry »

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... Read the rest of this entry »

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... Read the rest of this entry »

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... Read the rest of this entry »

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... Read the rest of this entry »