If you haven't already, please read what Henry Paul Monaghan has to say about the lawsuits challenging the Affordable Care Act. Monaghan is the Harlan Fiske Stone Professor of Constitutional Law at Columbia.
Legal critics of the Affordable Care Act insist that their case is consistent not only with the original intent of the Constitution, but also with modern precedent. They say that the individual mandate is so "unprecedented" that it violates contemporary understandings of the "Commerce" and "Necessary and Proper" clauses, which generations of justices and legal scholars have interpreted broadly. It's a critical claim, because defenders of the law (including me) have suggested that the only way to overturn the mandate is to reject precedents and to establish new boundaries on federal powers.
Everybody calm down. And when I say everybody, I include myself. Tuesday’s oral argument at the Supreme Court was not the finest hour for health care reform, for the philosophy of activist government, or for Solicitor General Don Verrilli. But oral arguments don’t typically change the outcome of cases. They are important primarily for the signals they send about the justices’ thinking.
Ever since Bush v. Gore, we’ve come to expect that federal courts will divide along predictable ideological lines: Judges appointed by Democrats are supposed to vote for Democratic priorities, while judges appointed by Republicans are supposed to prefer Republican priorities. In short, many people now assume judicial institutions will behave like legislative ones. But four recent decisions from the federal appellate courts call this assumption into question. On November 8, Judge Laurence Silberman, writing for the U.S. Court of Appeals for the D.C.
[with contributions from Matt O'Brien and Darius Tahir] Five and a half hours -- that's the time Supreme Court justices have set aside for oral arguments in the lawsuits against the Affordable Care Act. And you'll forgive me if I find that a little unsettling. As readers of this space know, I've long believed that the law's individual mandate is constitutional. Yes, the Supreme Court could reach a different conclusion. The justices can say pretty much whatever they want.
The D.C. Circuit Court of Appeals just issued a decision in the lawsuit against the Affordable Care Act. It looks like a big win for the administration—and, more importantly, for health care reform. I'll have more to say on this later, after I've read the decision more carefully. But I'll share two quick observations. The first is the author of the majority opinion: Judge Laurence Silberman, a Reagan appointee and conservative judge. He's now the second well-known, well-regarded conservative jurist at the Circuit level to uphold the law.
No, I haven't finished analyzing last week's decision, by the 11th Circuit Court of Appeals, invalidating the Affordable Care Act's individual mandate.
On Wednesday, the Obama Administration won its first Court of Appeals battle over the constitutionality of the health care mandate. A divided three-judge panel of the Sixth Circuit held that Congress has the power to require individuals to purchase health insurance or pay a penalty. The result is obviously correct, for reasons I’ve explained elsewhere (see “Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform,” Yale Law Journal Online), and Judge Boyce Martin’s lead opinion is brief and elegantly reasoned.
[Guest post by Simon Lazarus] As summarized one month ago in a post here on Jonathan Chait’s blog, conservatives reacted with fury to an article I wrote for Slate in which I pointed out that two major components of House Budget Committee Chair Paul Ryan’s Roadmap for America’s Future closely resemble the much-demonized “individual mandate” in the Affordable Care Act.