Constitutional Uncertainty and the Design of Social Insurance: Reflections on the Obamacare Case

The gravamen of the constitutional complaint against the individual mandate is its supposed intrusion on personal freedom. But, when all was said and done, no one attacked a state government’s requirement that individuals must purchase health insurance, nor advanced any constitutional limitation on the states doing so. All we have is a holding that if the federal government wishes to do the same, it must exercise its powers to tax and spend, not its power to regulate. The ACA case then is best understood as a legal attack on the means but not the goals of the health care legislation. This emphasis on means rather than ends and on state over federal powers potentially poses significant risks for the complex institutional arrangements for social insurance that now exist and may imply harmful constraints on how Congress can restructure these programs to better meet the needs of the American people in our 21st Century economy. Not coincidentally, the new constitutional framework announced in the ACA decision favors those who want to dismantle rather than strengthen our nation’s social insurance protections. We explain why this is so with regard not only to health insurance, but also unemployment insurance and social security

Constitutional Uncertainty and the Design of Social Insurance: Reflections on the Obamacare Case

In 2010, Barack Obama signed the Patient Protection and Affordable Care Act (the ACA), a complex statute of more than nine hundred pages that fulfilled his goal of extending health-insurance coverage to virtually all Americans – an objective that previous U.S. presidents had sought and failed to achieve for a century. This legislation was hotly contested in the Congress, passing with the support of very few Republicans in the Senate and none in the House. To broaden access to health insurance, the ACA relies primarily on two devices: (1) an expansion to Medicaid – a joint federal-state health-insurance program for – to cover adults with incomes up to 133% of the poverty level, and (2) refundable tax credits for families earning up to 400% of the poverty level to subsidize purchases of private health insurance. The Medicaid expansion includes a federal requirement that states expand their coverage to meet the new, higher income threshold or face the potential withdrawal of all federal Medicaid funds. Private insurers are required to take all applicants, regardless of their health, and are prohibited from increasing premiums based on preexisting medical conditions. The ACA also contains an individual mandate, which requires adults not covered by government-sponsored or employer-provided health insurance to purchase health-insurance coverage or pay a penalty. Seven minutes after the President had put down his pen signing the ACA into law, thirteen states filed lawsuits challenging the constitutionality of both the individual mandate and the Medicaid expansion. Another thirteen states and several individuals and organizations, including the National Federation of Independent Businesses (NFIB), soon joined as plaintiffs. After decisions had been rendered by several courts of appeals, the case came to the Supreme Court in an appeal from the decision of the Eleventh Circuit Court of Appeals. The Eleventh Circuit had struck down the individual mandate as exceeding Congress\u27s powers under the Commerce Clause and failing to qualify as a tax authorized by Congress\u27s power to tax and spend for the general welfare. That court upheld the Medicaid expansion, rejecting a claim that it was an unconstitutional attempt to coerce states into implementing and helping finance a federal program. The court found that the individual mandate was severable from the rest of the statute, which it upheld. The Fourth, Sixth, and District of Columbia Circuits had reached different conclusions

The grammar of administrative justice values

The debate concerning administrative justice in the UK often involves reliance upon a certain set of values. Examples of such values include openness, confidentiality, timeliness, transparency, secrecy, fairness, efficiency, accountability, user-friendliness, consistency, participation, rationality and equal treatment. These values are often deployed, both in academic and policy contexts, without much precision. This produces confusion which can hamper debate. This article therefore argues there is a need to reflect on how these oft-used values are deployed, and consider the particular concerns which underlie them. In this sense, this article suggests there is a need to refine the grammar of administrative justice. This argument is demonstrated through an extended analysis of the value of ‘user-friendliness’: a site of emerging disagreement in recent years. It proposes that an important distinction must be drawn between two understandings of the value: the ‘accessibility’ and ‘consumerist’ understandings. This article concludes by suggesting that, going forward, it is important to consider whether the use of abstractions is helpful at all in administrative law and justice debates

Mapping current issues in administrative justice: austerity and the ‘more bureaucratic rationality’ approach

This article critically reviews recent developments in the administrative justice system; in particular, it considers three key themes: improving initial decisions; administrative review; and the future of tribunals. In each of these areas, some aspects of administrative justice work well, but austerity has presented acute challenges in ensuring the fair and just treatment of people through restrictions upon legal aid; the withdrawal of some appeal rights; and the expansion of administrative review. Consequently, the system is moving away from a ‘legal’ model of administrative justice to the ‘bureaucratic rationality’ model, which focuses upon accurate and efficient implementation. However, the reality does not correspond with the goals of the model. Rather than accurate and efficient implementation of policy, what we find is poor decision-making made by junior officials with insufficient quality controls. Digitising tribunals may have potential benefits in terms of increased accessibility. Nonetheless, the prospects for administrative justice are weak

'It's Reducing a Human Being to a Percentage'; Perceptions of Justice in Algorithmic Decisions

Data-driven decision-making consequential to individuals raises important questions of accountability and justice. Indeed, European law provides individuals limited rights to 'meaningful information about the logic' behind significant, autonomous decisions such as loan approvals, insurance quotes, and CV filtering. We undertake three experimental studies examining people's perceptions of justice in algorithmic decision-making under different scenarios and explanation styles. Dimensions of justice previously observed in response to human decision-making appear similarly engaged in response to algorithmic decisions. Qualitative analysis identified several concerns and heuristics involved in justice perceptions including arbitrariness, generalisation, and (in)dignity. Quantitative analysis indicates that explanation styles primarily matter to justice perceptions only when subjects are exposed to multiple different styles---under repeated exposure of one style, scenario effects obscure any explanation effects. Our results suggests there may be no 'best' approach to explaining algorithmic decisions, and that reflection on their automated nature both implicates and mitigates justice dimensions.Comment: 14 pages, 3 figures, ACM Conference on Human Factors in Computing Systems (CHI'18), April 21--26, Montreal, Canad