Four Constitutional Limits That the Minimum Coverage Provision Respects

Opponents of the minimum coverage provision in the Affordable Care Act charge that if Congress can require most people to obtain health insurance or pay a certain amount of money, then Congress can impose whatever mandates it wishes—or, at least, whatever purchase mandates it wishes. This Essay refutes that claim by identifying four limits on the Commerce Clause that the minimum coverage provision honors. Congress may not use its commerce power: (1) to regulate noneconomic subject matter; (2) to impose a regulation that violates constitutional rights, including the right to bodily integrity; (3) to regulate at all, including by imposing a mandate, unless it reasonably believes that the regulation will ameliorate a significant collective action problem involving multiple states; or (4) to impose an economic mandate unless it reasonably believes that other regulatory means would be less effective or more coercive

Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis

[Excerpt] This report analyzes certain constitutional issues raised by requiring individuals to purchase health insurance under Congress’s authority under its taxing power or its power to regulate interstate commerce. It also addresses whether the exceptions to the minimum coverage provision to purchase health insurance satisfy First Amendment freedom of religion protections. Finally, this report discusses some of the more publicized legal challenges to ACA, as well additional issues that are currently before the Court

Virginia Under the Gun

This issue brief provides additional context about what is at stake as Virginia voters con-sider which leaders they want to represent them in Richmond. It discusses four aspects of gun violence and gun-related crime in Virginia that are exceptional, unique, or above the national average:1. More Virginians are killed annually by gunfire than in car accidents.2. Virginia is one of the top exporters of crime guns.3. Women are killed with guns by intimate partners at a high rate in Virginia.4. Virginia has been disproportionately affected by mass shootings

Virginia: Baseline Report - State Level Field Network Study of the Implementation of the Affordable Care Act

This report is part of a series of 21 state and regional studies examining the rollout of the ACA. The national network -- with 36 states and 61 researchers -- is led by the Rockefeller Institute of Government, the public policy research arm of the State University of New York, the Brookings Institution, and the Fels Institute of Government at the University of Pennsylvania.By and large, Virginia opponents of the Affordable Care Act have been able to thwart full implementation at the state level. This can be seen in Virginia's decision to default to a federally facilitated marketplace and refusal to close the coverage gap. Having control of the executive branch and legislature until 2014 allowed lawmakers to minimize the impacts of the ACA, implementing only what was legally required of them and ignoring calls from advocates for low-income people who called for fuller implementation.There remains the possibility for significant changes, including the structure and functioning of the marketplace as well as closing the coverage gap that would alter the state and national policy landscape. There remains serious debate about if and how Virginia will close the coverage gap. If Virginia moved forward, nearly 400,000 Virginians could get access to quality, affordable health care. Moreover, some advocates have asserted that Virginia could be the linchpin in opening up the South to Medicaid expansion

Foreword

The articles published in this volume of Law and Contemporary Problems address the constitutionality of the minimum coverage provision in the Patient Protection and Affordable Care Act (ACA), either directly or indirectly. They were originally presented at a conference at Duke Law School on September 16, 2011. Entitled “The Constitutionality of the Affordable Care Act: Ideas from the Academy,” the conference was inspired by the belief that legal academics who specialize in U.S. constitutional law, health law and policy, or statutory interpretation are making distinctive contributions to the national debate over the constitutionality of the ACA. These legal academics are less constrained by their clients or their offices than are other legal actors, they are blessed with the time to study constitutional doctrine or health law for a living, and they often possess interdisciplinary expertise that is pertinent to the proper resolution of legal problems. To be sure, these characteristics can be vices when exhibited in the practice of constitutional adjudication—particularly if creative impulses and theoretical ambitions are undisciplined by the necessity of deciding particular cases soundly. But these attributes can be virtues as well. Among many other activities, legal academics conduct original historical research, perceive connections among constitutional doctrines or provisions that have previously gone unnoticed, use relevant methods or insights of other disciplines to shed light on legal problems, and bring to bear their specialized legal knowledge to help courts of general jurisdiction decide between the clientcentered arguments of generalist appellate lawyers. These contributions can be relevant to the outcome of constitutional and statutory cases. This may help to explain why the Justices routinely cite the work of legal academics. Both the data and casual empiricism attest to the real-world relevance of much legal academic writing. Contributors to the volume include Stuart Benjamin, Joseph Blocher, Erwin Chemerinsky, Mark Hall, Bryan Leitch, Theodore Ruger, Stephen Sachs, Neil Siegel, Ilya Somin, and Ernest Young

The Virginia’s governor’s race is a contest between two unfavorable candidates

Next Tuesday Virginia goes to the polls to elect a new governor, with Democrat Terry McAuliffe leading in the polls over his Republican rival Ken Cuccinelli. Toni-Michelle C. Travis takes a look at the election race so far, writing that both candidates’ campaigns have been overshadowed by ethical questions, with many voters viewing the pair unfavorably. She argues that McAuliffe’s lead among women, as well as Virginia’s changing population, illustrates that candidates now must appeal to the mainstream, and not the ideological fringe

The Liberty of Free Riders: The Minimum Coverage Provision, Mill’s “Harm Principle,” and American Social Morality

In this Article, the authors show that cost-shifting and adverse selection problems link the federalism dimension of the debate over the Affordable Care Act to the doctrinally separate and suppressed individual rights dimension. As the scope of these free-rider problems justifies federal power to require individuals to obtain health insurance coverage, so the very existence of the free-rider problems illuminates the difficulty of arguing directly — as opposed to indirectly through the Commerce Clause — that the minimum coverage provision infringes individual liberty. The interdependence between some people’s decisions to forgo insurance and the well-being of other people means that refusing insurance is far from being a purely self-regarding action. For reasons rooted in this interdependence, serious obstacles confront anyone who aims to establish that the liberty claims of free riders should be constitutionally or morally decisive. The authors identify these obstacles to recognition of the claimed liberty interest with help from law, economics, and philosophy. First, they show that an economic substantive due process objection to the minimum coverage provision is doctrinally unavailable. Indeed, its unavailability explains why opponents of the provision take the less straightforward doctrinal approach of recasting the Commerce Clause in libertarian terms. Second, we invoke the long-standing tradition of argument in economics that market failures justify government regulation. Finally, the authors draw from the “harm principle” of John Stuart Mill’s On Liberty. Mill’s deep commitment to libertarianism, which reflects the same anti-authoritarian spirit that moves many libertarians today, does not condemn the minimum coverage provision. This is because Mill’s criterion categorically forbids only paternalism in law-making, and the provision is justified on non-paternalistic grounds. When the regulation under consideration is not paternalistic, Mill’s libertarianism points explicitly to law and social morality to resolve boundary questions about what members of a society owe one another. In our judgment, these considerations — from federal and state safety net programs to charitable hospital practices — weigh in favor of the permissibility of the minimum coverage provision