Liberty University v. Lew, the Fourth Circuit’s recent decision about the Affordable Care Act [ACA], should please no one. The opinion demonstrates the dangers of exempting religious organizations and individuals from the law. Take your pick. The court either exempted too many, or too few. Its middle ground unsatisfactorily addresses the First Amendment challenges to the Act.
Individual plaintiffs and Liberty University opposed the individual and employer mandates of the ACA. The individual mandate requires individuals to obtain minimum essential health care coverage or pay a penalty in their taxes. The employer mandate requires employers to provide affordable minimal essential health care coverage to full-time employees or face a tax penalty.
All plaintiffs are Christians morally opposed to abortion except to save the life of the mother. The most straightforward of their complaints alleged that their mandated insurance payments would wind up paying for abortions in violation of their constitutional and statutory rights. This is the simplest exemption argument in the case: plaintiffs think they should be exempt from the ACA because it burdens their religion.
The court quickly dismissed that argument. Under the Free Exercise Clause, it ruled, the ACA is a neutral law of general applicability that applies to everyone without singling out religions for disfavor. Moreover, the court decided, plaintiffs’ religion was not burdened by the mandates. Although plaintiffs alleged that their money would be used for abortion, other provisions of the ACA required that a plan without abortion coverage would always be available as a choice for consumers. Without a substantial burden on religion, neither the Free Exercise Clause nor the Religious Freedom Restoration Act (which prohibits the federal government from substantially burdening religion without a compelling government interest) was violated.
The right continues to wage a tiresome campaign against even modest efforts to repair the nation’s tattered social safety net.
Although only symbolic, since it won’t go anywhere in the Senate, the House of Representatives passed a measure to repeal the landmark health care reform law, the Affordable Care Act (ACA).
It was not the first time the House has voted on such a measure. In fact the chamber has voted more than 30 times to repeal the ACA. The right-wing controlled House wants to remind everyone that it cares little about the tens of millions of uninsured Americans.
“If this bill were to pass, insurance companies could once again discriminate against 17 million children with pre-existing conditions. If it were to pass, 30 million Americans would lose their health insurance coverage. It would take away $651 each from 5.3 million seniors in the Medicare ‘donut hole,’ making their prescription drugs more expensive,” Hoyer (pictured) said.
He also noted that “6.6 million young adults under 26 would be forced off their parents’ plans, left to face a tough job market with the added pressure of being uninsured.”
All of the Republican’s repeal bills, as Hoyer highlighted, contained no measures to help the uninsured.
Reading from the bench during the announcement of the Supreme Court’s decision on the Obama administration’s landmark health care reform law, Justice Ruth Bader Ginsburg declared, “In the end, the Affordable Care Act survives largely unscathed.”
Yes, the Obama administration’s signature legislative achievement and the strongest effort in many decades to repair the nation’s tattered social safety did survive Supreme Court scrutiny.
But as noted here yesterday, it did so barely, and not in the manner that many constitutional law experts and the high court’s four moderate to left-of-center justices had thought it would. And the opinion also included a shrill dissent that envisions a vastly ineffective federal government. As former U.S. Solicitor General Walter Dellinger said during yesterday’s ACS press briefing if the dissent had carried the day it would have marked and “extraordinary revolution” in constitutional law jurisprudence.
Although the federal government argued that the law’s integral measure, the minimum coverage provision, was constitutional on two major fronts, it was largely thought that it would be upheld as a valid regulation of commerce. The activity of the health care market represents nearly 18 percent of the nation’s economy.
But that did not happen. And some constitutional law scholars say that fact should not be ignored.
Chief Justice John Roberts’ majority opinion provides some language suggesting the high court was not radically re-reading precedent on the commerce clause. But a careful reading of his opinion reveals that the libertarian argument for a vastly cramped interpretation of the commerce power carried the day.
As The New York Times’ Adam Liptak put it, “Five justices accepted the argument that had been at the heart of the challenge brought by the 26 states and other plaintiffs: that the federal government is not permitted to force individuals not engaged in commercial activities to buy services they do not want. That was a stunning victory for a theory pressed by a small band of conservatives and libertarian lawyers. Most members of the legal academy view the theory as misguided, if not frivolous.”
Justice Ruth Bader Ginsburg in her concurring opinion also took the chief justice to task for a “rigid reading” of the commerce clause that “makes scant sense and is stunningly retrogressive.”
We’ll likely know Thursday whether the Obama administration’s landmark health care reform law, the Affordable Care Act, is invalidated or greatly hobbled by the Supreme Court. If that is the outcome, Lazarus, senior counsel to the Constitutional Accountability Center, writes that “leading Democrats” are primarily to blame for failing to defend the constitutionality of the law. They “didn’t even try,” he writes.
Quickly after the Republican politicos lodged lawsuits against the ACA, and in particular the law’s minimum coverage provision, right-wing activists and libertarians went about methodically convincing the pubic that their constitutional attacks were legitimate.
The Right’s legal arguments may have been “legally flimsy,” but they also lent themselves to easily “digestible sound-bites” that eventually helped move the public against the landmark law. The simplistic liberty based argument – if the federal government can mandate individuals to purchase a small amount of health care insurance, then its power is unlimited – was also seemingly adopted by Justice Antonin Scalia during oral arguments in the case.
But liberals’ failure to defend the constitutionality of the health care law was not a unique stumble, Lazarus says.
This month, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution.
In the “Obamacare” cases, the Court considers whether the Affordable Care Act (“ACA”) exceeds the boundaries of federal authority under the various provisions of the Constitution that establish the relationship between local and national governance. Its response will determine the fate of Congress’s efforts to grapple with the nation’s health care crisis, and perhaps other legislative responses to wicked regulatory problems like climate governance or education policy. Whichever way the gavel falls, the decisions will likely impact the upcoming presidential and congressional elections, and some argue that they may significantly alter public faith in the Court itself. But from the constitutional perspective, they are important because they will speak directly to the interpretive problems of federalism that have ensnared the architects, practitioners, and scholars of American governance since the nation’s first days.