NCP: Affordable Care Act (ACA) of 2010

Question 1

National Federation of Independent Business v. Sebelius (2012)(Supp. 4)

Answer 1

a) Facts: Congress passes ACA because many Americans have no health insurance yet actively participate in the health care market, consuming health care services but not paying.
i) Government argues that inactivity has an economic affect on interstate commerce.
b) Held: Congress does not have the authority to force people to buy a product (regulate inactivity) under either the Commerce Clause or the Necessary and Proper Clause. However, the court upheld the mandate under the Taxing and Spending Clause since the sole consequence for failing to buy insurance is a tax, which is in the authority of the federal government c) Split:
i) Four Justices believe that the law is valid as a Tax as well as under the Commerce Clause ii) Four believe that it is an invalid exercise of tax power and an invalid exercise of the Commerce Clause.
iii) The opinion of Roberts is the dispositive opinion. Says it is not a valid exercise of commerce power but is a valid exercise of taxing power.

Question 2

Summary of Justice opinions

Answer 2

i) Chief Justice Roberts, joined by Ginsburg, Breyer, Sotomayor, and Keagan, concluded that the Individual mandate penalty is a tax for the purposes of the Taxing and Spending Clause and is a valid exercise of Congressional authority.
(1) As part of a jointly written dissent, Scalia, Kennedy, Tomas and Alito disagreed, arguing that because Congress characterised the payment as a penalty, to instead say it is a tax would amount to rewriting the act.
ii) Roberts, Scalia, Kennedy, Tomas and Alito concluded that the individual Mandate was not a valid exercise of Congress’ power to regulate commerce. The Commerce Clause allows Congress to regulate existing commercial activity, but not to compel individuals to participate in commerce.
(1) Ginsburg, concurring in part and dissenting in part, joined by Breyer, Sotomayor and Kagan disagreed, arguing that the Chief Justices’ distinction between economic activity and inactivity is ill defined and unsupported by either the Courts precedents or the text of the Constitution. Furthermore, even if this dissection were permissible, individuals who fail to purchase insurance nonetheless frequently participate in the healthcare market, substantially impacting healthcare commerce, and may therefore be regulated by
Congress

Question 3

e) Issues:

Answer 3

i) Inactivity/activity
(1) Gov: Wickard controls, the aggregation principle applies: for economic reasons all without health coverage are part of a large industry with large economic affects.
(2) Other side: those not on health insurance were inactive, and congress cannot regulate inactivity. ii) “Broccoli” argument, i.e. Personal Liberty
(1) Argument that forcing people to buy health insurance is a violation of the constitutional grant of personal liberty. The government can no more do that than to say that everyone must eat broccoli because if more people did than more people would be healthy.
(2) Problem is that if the broccoli argument applies to health care as a liberty argument than the Mass Health Care Law is unconstitutional.
(a) 14th Amendment argument not raised due to these concerns. Way too risky.

Question 4

Schauer Note:

Answer 4

After GOP healthcare bill fail, President Trump says “Obama care will explode.” He could be in violation of Article II Section III, which calls for POTUS to uphold law of the land. might be a “departamentalist” POTUS, where he refuses to defend laws he thinks are unconstitutional or bad policy