Faith-Based Emergency Powers

This Article explores an expanding phenomenon that it calls Faith-Based Emergency Powers. In the twenty-first century, conservatives have come to rely heavily on Faith-Based Emergency Powers as a legal strategy in the culture wars. This typically involves carving faith-based exceptions to rights of women and LGBT people. The novel concept of Faith-Based Emergency Powers is developed in this Article through an analogy to “traditional” emergency powers. In the war-on-terror, conservatives have argued that judges, legislators and the public must defer to the President and the executive branch in matters involving national security. As scholars have shown, this position has three key components: (1) a rhetoric of war, emergency or catastrophe; (2) a legal argument for suspension of existing human rights; and (3) a designation of decision-makers in real or perceived emergencies who are allegedly more qualified than courts or legislatures to address the national-security emergency. The consequence is temporary suspension of human rights in real or perceived national-security emergencies. The principal claim of this Article is that in contemporary culture wars, conservative politicians, lawmakers, and litigants have imported these emergency powers rationales to a range of legal contexts including marriage-equality, the Affordable Care Act (ACA), and general antidiscrimination laws. For example, the Supreme Court has recently granted certiorari in the case of a Denver baker who refused to sell a wedding cake to a same-sex couple. In its 2017-2018 session the Court will decide whether an individual’s religious or moral objection to same-sex marriage trumps state public accommodations laws. In this case and in many others, the conservative position typically follows the rationales of traditional emergency powers in (1) applying rhetoric of war and emergency; (2) arguing for suspension of legal rights of women and sexual minorities and; (3) claiming deference to religious or moral dissenters. The end goal, as in the war-on-terror, is to suspend or diminish legally recognized individual rights. The Article concludes that lawmakers ought to defend the rule-of-law and individual rights by rejecting Faith-Based Emergency Powers

The Individual Mandate: The Ultimate Conservative Idea

The individual mandate is perhaps the most contested and least popular provision of the 2010 Affordable Care Act (ACA). The mandate, which requires most Americans to obtain health insurance or pay a penalty, was put in the ACA as a means to increase the number of Americans with access to health care insurance. A poll taken by Gallup in February 2012 revealed that 72% of Americans view the individual mandate as unconstitutional (Gallup poll, 2012). This extreme opposition towards the mandate intrigued me and I was interested in learning where this negativity was stemming from and why it seemed to be such a taboo, especially in the Republican circles. As I began to research the origin of the individual mandate, I discovered that the current Republicans opposition towards the mandate is, in fact, misguided. In my paper I conducted a careful examination of the individual mandate’s history revealing that is was originally a conservative idea and encompasses many conservative values, specifically the value of individual responsibility. In fact, the individual mandate was both introduced in various health care legislation and endorsed by republican politicians throughout the 1990s and into the 2000s. This research reveals that republican opposition towards the individual mandate has evolved only recently in the light of the passing of the ACA. What was once, accepted by many democrats and republicans as a logical way to expand access is now seen as overstepping individual freedom and rights. In my paper, I present the recent critics’ arguments against the mandate and explain why they are so prominent at this time. In addition to this, I propose solutions such as, changing the language associated with the mandate and creating a political environment that allows for bipartisanship, which will turn this opposition into acceptance of and support for the mandate

The Role of Exchanges in Quality Improvement

Explores state options and considerations for driving healthcare quality improvement and delivery system reform at the plan and provider levels through insurance exchanges, including the need to involve all stakeholders in developing and executing policy

50 Years after the Civil Rights Act: The Ongoing Work for Racial Justice in the 21st Century

This report documents the state of civil and human rights, and paints a persuasive picture of just how far the United States still has to go to make racial justice a reality. The report also makes a series of policy recommendations in the areas of justice reform, education, employment, hate violence, housing, human rights, immigration policy, media and technology, and voting. This Report commemorates the 50th anniversary of the Civil Rights Act and the 20 years since the United States ratified the Convention on the Elimination of All Forms of Racial Discrimination (CERD). The Leadership Conference on Civil and Human Rights collaborated with 39 other organizations in 2014 in documenting their concerns and recommendations for progress under the treaty. According to the report, while progress has been made, the U.S. still struggles on many fronts. The Leadership Conference addresses racial justice and highlights many of the issues that remain important today

An O’Neill Institute Briefing Paper: The Supreme Court’s Landmark Decision on the Affordable Care Act: Healthcare Reform’s Ultimate Fate Remains Uncertain

The Supreme Court’s decision on the constitutionality of the Patient Protection and Affordable Care Act (ACA) is a landmark on the path toward ensuring universal access to health care in the United States. In a 5-4 decision written by Chief Justice Roberts, the Court upheld the law in its entirety with the sole exception that Congress may not revoke existing state Medicaid funding to penalize states that decline to participate in the Medicaid expansion under the ACA. In this O’Neill Institute Briefing, we explain and analyze the Court’s decision, focusing on the individual purchase mandate and the Medicaid expansion, while also explaining the fundamental shifts in constitutional interpretations that may affect public health, safety and environmental protection in the future. The precise significance of the individual mandate to the proper functioning of the ACA remains to be seen, primarily because the penalties are small relative to the cost of insurance. The IRS also has little enforcement authority if individuals elect not to purchase insurance. The mandate remains the only mechanism for the ACA’s financial sustainability. The importance of the Medicaid expansion cannot be overstated, as it is the sole means by which poor Americans will gain coverage. If states decline to participate there may be a social justice disaster in which disparities in access to health insurance in some states actually widen under the ACA as middle-class and well-off Americans gain access to insurance while the poor are left behind. Justice Roberts sided with the Court’s conservative wing to espouse a narrow view of Congress’ ability to regulate under the Commerce Clause, which could create challenges as future Congresses seek to address national public health problems. Even so, we conclude that the Court’s decision leaves the United States immensely better off in that future debates will likely center around how to ensure access to health care for all, not whether to do so–that debate is over, and the nation should push forward on the path toward universal coverage

What Directions for Public Health Under the Affordable Care Act?

Outlines opportunities for public health efforts under the 2010 healthcare reform law, such as building prevention into insurance expansion and boosting innovation in population health, as well as challenges, such as budget constraints

Health Care’s Other “Big Deal”: Direct Primary Care Regulation in Contemporary American Health Law

Direct primary care is a promising, market-based alternative to the fee-for-service payment structure that shapes doctor–patient relationships in America. Instead of billing patients and insurers service by service, direct primary care doctors charge their patients a periodic, prenegotiated fee in exchange for providing a wide range of healthcare services and increased availability compared to traditional practices. This “subscription” model is intended to eliminate the administrative burdens associated with insurer interaction, which, in theory, allows doctors to spend more time with their patients and less time doing paperwork. Direct practices have become increasingly popular since Congress passed the Affordable Care Act (ACA). This growth has been driven by legislation in several states that resolves a number of legal questions that slowed the model’s growth and by the ACA’s recognition of the model as a permissible way to cover primary care in “approved” health plans. Yet legal scholars have hardly focused on direct primary care. Given the model’s growth, however, the time is ripe for a more focused legal inquiry. This Note begins that inquiry. After tracing the model’s evolution and its core components, this Note substantively examines the laws in states that regulate direct practices and analyzes how those laws address a number of potential policy concerns. It then analyzes direct primary care’s broader role in the contemporary American healthcare marketplace. Based upon that analysis, this Note concludes that direct primary care is a beneficial innovation that harmonizes well with a cooperative-federalism-based healthcare policy model

Not the Power to Destroy: An Effects Theory of the Tax Power

The Supreme Court’s “new federalism” decisions impose modest limits on the regulatory authority of Congress under the Commerce Clause. According to those decisions, the Commerce Clause empowers Congress to use penalties to regulate interstate commerce, but not to regulate noncommercial conduct. What prevents Congress from penalizing non-commercial conduct by calling a penalty a tax and invoking the Taxing Clause? The only obstacle is the distinction between a penalty and a tax for purposes of Article I, Section 8. In National Federation of Independent Business v. Sebelius (NFIB), the Court considered whether the minimum coverage provision in the Patient Protection and Affordable Care Act (ACA) imposes a penalty or a tax by requiring most individuals to either buy health insurance or make a payment to the Internal Revenue Service. Writing for the Court, Chief Justice Roberts concluded that the minimum coverage payment is a tax for constitutional purposes, even though Congress called it a penalty. This Article develops an effects theory to distinguish between penalties and taxes. The authors believe that it provides the best theoretical justification of the tax-power holding in NFIB. The effect of a penalty is to prevent conduct, thereby raising little revenue, whereas the effect of a tax is to dampen conduct, thereby raising revenue. Three opposing characteristics of an exaction give incentives for preventing or dampening conduct, and thus provide criteria for distinguishing between penalties and taxes. A pure penalty condemns the actor for wrongdoing; she must pay more than the usual gain from the forbidden conduct; and she must pay at an increasing rate with intentional or repeated violations. Condemnation coerces expressively and relatively high rates with enhancements coerce materially. Alternatively, a pure tax permits a person to engage in the taxed conduct; she must pay an exaction that is less than the usual gain from the taxed conduct; and intentional or repeated conduct does not enhance the rate. Permission does not coerce expressively and relatively low rates without enhancements do not coerce materially. The ACA’s required payment for non-insurance has a penalty’s expression and a tax’s materiality. Its constitutional identity depends on the reasonable expectations of Congress concerning its effect. If Congress could have reasonably concluded that the exaction will dampen—but not prevent—the general class of conduct subject to it and thereby raise revenue, then courts should interpret it as a tax regardless of what the statute calls it. If Congress could have reasonably concluded only that the exaction will prevent the conduct of almost all people subject to it and thereby raise little or no revenue, then courts should interpret it as a penalty. In the case of the minimum coverage provision, the Congressional Budget Office predicts that the exaction for non-insurance will dampen uninsured behavior but not prevent it, thereby raising several billion dollars in revenue each year. Accordingly, the exaction is a tax for purposes of the tax power