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Monday, November 28, 2011

The CLASS Act: A Missed Opportunity in Health Care Reform
5:11 PM ET

JURIST Guest Columnist Ann Schunicht, Saint Louis University School of Law Class of 2012, is a member of the Health Law Moot Court Competition Team. She compares the recently abandoned CLASS Act to France's long-term health care system, arguing that the act's failure was a missed opportunity to explore the impact of this long-term home care scheme...

In October 2011, the Obama administration abandoned a piece of the Patient Protection and Affordable Care Act (PPACA) because US health officials could not create a voluntary, budget-neutral program under the Community Living Assistance Services and Supports Act (CLASS Act). Beginning in October 2012, the CLASS Act would have provided funds to disabled and elderly citizens for long-term home care. These funds would not have replaced basic health insurance, long-term care coverage from Medicaid or other forms of private insurance; rather it would have supplemented existing insurance and paid for independent living expenses.

The CLASS Act provided that enrollees would participate on a voluntary basis in a fund that would function as a national insurance program. Working adults would have made voluntary premium contributions, paid directly to the fund, or deductions would have been taken from their paychecks. In order to receive benefits, the policyholder would have had to pay monthly premiums for at least five years and have been employed during three of those five years. Further, in order to receive benefits, the individual would have had to have suffered from multiple functional limitations or cognitive impairments. The impairment must have been expected to last for a continuous period of more than 90 days.

Premiums paid by enrollees and interest earned on the fund balance would have subsidized the CLASS Act fund. The premium rates would have varied; for example, younger enrollees would have paid less than older enrollees. In addition, individuals with income below the federal poverty level and employed full-time students would have paid lower premiums. The funds could have been used for home health care, adult day care, assistive technology, home modifications, personal assistance services, respite care, accessible transportation and homemaker services.

The CLASS Act was a hard political sell from the beginning. Projections showed a low enrollment rate, especially from the healthy population, and future costs outweighed future income. Originally, the Congressional Budget Office (CBO) estimated that in the first decade, the CLASS Act would reduce the federal deficit by $70 billion. The CBO also projected a reduction in Medicaid spending over a decade because fewer individuals would enter institutional living and would qualify for Medicaid. Despite the benefits, the CBO found that the CLASS Act would lose money after 10 to 20 years, when the costs of the benefits would have begun to exceed the premiums.

With the CLASS Act removed from the PPACA, Americans must solve the problem of how to finance elder and end-of-life care. The passage of the CLASS Act would have created a voluntary and public national insurance program that would have helped to alleviate the high cost of long-term care. It is estimated that two-thirds of Americans will need some type of long-term care later in life. Despite this high proportion of Americans, only half of current retirees have saved over $55,000 for long-term care. Additionally, only seven million Americans own long-term-care insurance policies.

Policies similar to the CLASS Act do exist in other countries, and they help aging populations to pay for long-term care. In 2002, France adopted a system called the Allocation Personnalisée d'Autonomie (APA), a long-term care insurance system funded by the general tax and administered at a regional level. The French government determines the enrollees of the insurance program based on income, and enrollees with lower incomes receive more benefits. On the other hand, individuals with higher incomes and lower public long-term care benefits, purchase private long-term care insurance to supplement their government benefits. France's public health insurance system provides its enrollees with health care in institutions and at home.

The CLASS Act and the APA have similarities and differences. In France, the APA provides funds for people 60 years of age and over, whereas the CLASS Act does not have an age requirement. Instead, CLASS Act enrollees would have been eligible after making five years of premium payments into the system. Like the CLASS Act, the APA does not provide benefits unless the patient has suffered a loss of autonomy, which is to say that an individual needs help with at least three daily living activities. The CLASS Act limited eligibility to individuals unable to perform two or more activities of daily living, or to those with a cognitive disability that required supervision or assistance in performing these activities. Similar to the CLASS Act, the APA allows beneficiaries to spend the monthly cash allowance on a variety of long-term care purposes, including hiring caregivers, paying family members to function as caregivers or even renovating homes in order to improve mobility.

The enactment of the CLASS Act would have moved the US towards a public, national insurance plan focused on alleviating the cost of long-term care. The system would have functioned very similarly to France's APA, providing a monthly credit for any necessary form of long-term care. If the CLASS Act had followed in the footsteps of France's APA, it may have cost more than anticipated. The expected first year cost of the APA was $3.6 billion, but actual costs totaled $4.9 billion. With current low private enrollment rates in long-term care policies in the US, enrollment rates in the CLASS Act may have remained low or individuals may have taken advantage of the credit system and begun to pay the monthly premiums. It is difficult to say.

However, without the CLASS Act, the US remains with its current method of long-term care, which includes government-managed, long-term care insurance through tax incentives and increased Medicaid coverage. The PPACA is a significant piece of health care reform legislation that will benefit the nation, and Americans will never know if the CLASS Act would have continued this trend.

Ann Schunicht is a Staff Editor on the Saint Louis University Journal of Health Law & Policy. She received her undergraduate degree in Conflict Studies and Sociology from DePauw University.

Suggested citation: Ann Schunicht, The CLASS Act: A Missed Opportunity in Health Care Reform, JURIST - Dateline, Nov. 28, 2011,

This article was prepared for publication by Elizabeth Imbarlina, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at

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Friday, July 08, 2011

Necessary and Proper: Health Care Costs and the Individual Mandate
10:07 AM ET

Hillary Stemple, University of Pittsburgh School of Law Class of 2012, worked in the health care industry for five years prior to entering law school and is now in the Health Law Certificate program. She says that the individual mandate must be constitutional as a necessary and proper regulation of commercial activity due to the way in which the growing uninsured population negatively impacts the entire market...

As Americans, we generally abhor being told by our government that we must do something. It is natural for Americans to think, "How can the government force me to purchase health insurance?" Perhaps this is why the individual mandate provision in the Patient Protection and Affordable Care Act (PPACA) has been so controversial. The idea that the government can compel an individual to purchase health insurance has led to numerous challenges of the PPACA. The argument most frequently used when arguing that the PPACA is unconstitutional is that Congress lacks the authority under the Commerce Clause to regulate inactivity, and that not purchasing health insurance is inactivity. This argument, however, fails upon closer examination of how the health care system, and perhaps more importantly, the health insurance system work in the United States today. The US Court of Appeals for the Sixth Circuit, in its opinion upholding the constitutionality of the PPACA, recognized the key fallacy in the "inactivity" argument—failure to purchase health insurance does not guarantee inactivity with regard to health care.

As of November 2010, the Centers for Disease Control and Prevention (CDC) estimated that almost 60 million Americans lacked health insurance. While the morality of allowing so many of our citizens to go without adequate health care access can be debated, what is not debatable is the effect those 60 million people have on the overall cost of health care. The reality is that while these people do not have health insurance, they still become sick or injured and must seek treatment from doctors and hospitals. As the Sixth Circuit stated in its ruling, "[v]irtually everyone requires health care services at some point."

Unfortunately, health care providers bear a large burden when it comes to providing services to the uninsured. Hospitals receiving federal money in the form of Medicare payments are required by the Emergency Medical Treatment and Active Labor Act to treat all patients presenting with emergency conditions, without consideration for their insurance status. This means that individuals without insurance will receive hospital treatment, regardless of their ability to pay. While hospitals are allowed to bill uninsured patients for the cost of their care, these individuals often lack the funds to pay for the care they have received, meaning that hospitals are left holding large uncollectable balances for care already given. In 2008, the cost of uncompensated care for hospitals nationally was about $43 billion, or 5 percent of hospital revenue.

A 5 percent drop in hospital revenue can have a large impact, particularly hospitals in lower population density areas that struggle to provide adequate care in their communities while competing with larger health care entities. As a result, hospitals must attempt to make up the lost revenue by raising costs for all patient care in hopes of obtaining higher payments from insurance companies for the care of insured patients. Health insurance companies then pass on the increased costs to the general public in the form of higher premiums. The last part of this self-perpetuating cycle, which leads to the ever-increasing cost of health care in America, is that as insurance premiums rise, more and more individuals are priced out of the insurance market, resulting in a continual increase in uninsured individuals.

The Sixth Circuit rightly acknowledged that a failure to purchase insurance is not a failure to participate in the health care system, stating, "[v]irtually everyone participates in the market for health care delivery," and "far from regulating inactivity, the [individual mandate] regulates active participation in the health care market." With the PPACA, Congress was not attempting to regulate the inactivity of purchasing health insurance but rather was attempting to regulate the broader health care system.

The US Supreme Court has a long history, dating back to their ruling in Wickard v. Filburn, of acknowledging Congress's broad powers under the Commerce Clause in regulating economic activity, even activity that may only affect commerce in the aggregate. It would be almost impossible to argue that health care in America is not a commercial activity. In 2009, health care expenditures in the US were nearly 18 percent of the gross domestic product (GDP). Clearly, health care is a commercial activity, and in reaching the conclusion that Congress was regulating health care with the individual mandate provision, it is necessary to conclude that the individual mandate is constitutional under the Commerce Clause.

Even if the Sixth Circuit had found that the individual mandate exceeded Congress's authority, it is likely that the authority for the provision could be found under the Necessary and Proper clause. The Constitution gives Congress the authority to "make all Laws which shall be necessary and proper" for the execution of its enumerated powers (in this case the authority to regulate commerce). With the almost certain conclusion that health care is an economic activity, the individual mandate would need only be essential to the broader regulation to be constitutional.

The basic nature of insurance is what makes the individual mandate necessary to the broader efforts to regulate health care costs. The basic aims of the PPACA are to lower health care costs in America, and grant more individuals access to health insurance. In order to accomplish these goals, the PPACA places more restrictions on insurance companies to prevent them from denying access to high-risk, or high-cost patients. Basically, the PPACA is opening the doors to all individuals regardless of medical history. In doing this, the insurance companies are going to be taking on individuals with expensive medical needs, making their profits decrease. In order to compensate for the more expensive individuals, insurance companies will be forced to raise their prices, again contributing to the self-perpetuating cycle resulting in a higher number of uninsured individuals.

However, there is another way to insure the "sick" population, without causing insurance companies to increase costs—require healthy individuals to purchase insurance as well. When enough "healthy" individuals purchase insurance, they offset the "sick" population the insurance companies are forced to insure under the PPACA. This will stabilize the cost of health insurance, making it more affordable for all. The PPACA relies on the influx of healthy and currently uninsured individuals into the health insurance market to make the overall scheme function. Therefore, the individual mandate is a necessary aspect of the broader health care regulation scheme.

The Sixth Circuit's opinion was an important first step in settling an issue that will ultimately be resolved by the Supreme Court. It provides a strong foundation and a compelling argument for why the PPACA is constitutional. Hopefully, the Supreme Court will come to the same conclusion.

Hillary Stemple, a senior editor on JURIST Paper Chase, is the 2011 recipient of the University of Pittsburgh Esther F. Teplitz Award for Health Law. She graduated from Pennsylvania State University with a degree in Biology and Nutrition and later served as the manager of an orthopedic practice.

Suggested citation: Hillary Stemple, Necessary and Proper: Health Care Costs and the Individual Mandate, JURIST - Dateline, July 8, 2011,

This post was prepared for publication by Megan McKee, the head of JURIST's student commentary service. Please direct any questions or comments to her at

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Thursday, July 07, 2011

Commerce Clause Jurisprudence and Original Intent in Health Care
2:07 PM ET

David Meyers, Columbia Law School Class of 2013, worked as a staffer to President George W. Bush from 2006 to 2009 and later in the US Senate. He argues that although health care reform may fit within current precedent, the Supreme Court must temper its Commerce Clause jurisprudence to strike down the individual mandate...

In his concurring opinion in United States v. Lopez, Justice Clarence Thomas urged the Supreme Court to temper its Commerce Clause jurisprudence "in a manner that both makes sense of our more recent case law and is more faithful to the original understanding of that Clause." After two decades of silence, President Barack Obama's health care legislation has given the Supreme Court an opportunity to restore common sense to the Commerce Clause.

In light of the ruling by the US Court of Appeals for the Sixth Circuit finding that the individual mandate is a proper exercise of Congress's Commerce Clause power, it is clear that the Supreme Court will have to overturn or temper its case law, especially Wickard v. Filburn, if it wants to invalidate the individual mandate.

The Sixth Circuit ruling garnered attention because Judge Jeffrey Sutton, a George W. Bush appointee, who wrote the controlling rationale, held that under current case law the individual mandate is constitutional. Judge Sutton's written opinion reveals a judge who felt forced to uphold the law because of the way that Congress and the Supreme Court have distorted the original intent and meaning of the Commerce Clause.

Wickard is the exemplification of the Commerce Clause run amok. In this case, the Supreme Court held that Congress could limit the amount of wheat a farmer produced for his own use under the guise of regulating interstate commerce. On its face, this seems absurd. How can something be part of interstate commerce when it is intended solely for personal consumption? Thanks to then-recent cases, such as United States v. Darby and NRLB v. Jones, the Supreme Court held that Congress could regulate anything that "exerts a substantial economic effect on interstate commerce."

This is why from 1937 to 1994 not a single law was struck down for exceeding Congress's Commerce Clause power. The two major cases that struck down Commerce Clause regulations since 1994, Lopez and United States v. Morrison, were invalidated because they regulated non-economic criminal activity and dealt with criminal statutes.

However, as Judge Sutton notes in his opinion, the health care bill is easily distinguished from Lopez and Morrison since Congress is regulating economic activity because health care costs consume nearly 20 percent of our gross domestic product.

Judge Boyce Martin, who wrote the court's opinion, also cited Wickard when he held that "Congress may also regulate even non-economic intrastate activity if doing so is essential to a larger scheme that regulates economic activity." Clearly, an individual mandate is essential to the health care bill's larger scheme of regulating the health care industry. As the Obama administration has argued, without the mandate people would wait until they were sick to purchase health insurance and the system would be unsustainable.

Furthermore, under cases such as Wickard and Lopez, Congress can regulate any activity if it has a rational basis for believing that the activity "substantially affects" interstate commerce. Since congressional action almost always passes a rational basis test, and since almost everything that involves economic activity "substantially affects" interstate commerce, the individual mandate appears to be constitutional under current case law.

Therefore, Judge Sutton believed the only choice he had under cases like Wickard was to uphold the individual mandate. According to Judge Sutton, "if, as Wickard shows, Congress could regulate the most self-sufficient of individuals—the American farmer—when he grew wheat destined for no location other than his family farm, the same is true for those who inevitably will seek health care and who must have a way to pay for it." A careful reading of Judge Sutton's opinion, however, shows that he is not convinced that the Supreme Court will or should uphold the mandate. The Supreme Court, he writes, "can decide that the legend of Wickard has outstripped the facts of Wickard—that a farmer's production only of more than 200 bushels of wheat a year substantially affected interstate commerce. A court of appeals cannot."

The argument that the health care bill can be distinguished from Wickard because it regulates inactivity is not very persuasive. As the Obama administration and Judges Martin and Sutton point out, all Americans at some point are going to use the health care system. Therefore, Congress is not forcing them to buy medical care—only to regulate how they pay for it and ensure that they pay for it in a way that does not shift costs onto others.

The only way the inactivity argument might work is through an as-applied challenge, as Judge Sutton suggests. For example, a challenge could be brought by someone who had the money to pay his medical costs out of pocket but was forced to buy health insurance to pay his bills. The plaintiff could argue that this would be similar to Congress telling everyone who drives that they have to buy a particular type of car.

This argument is still likely to fail because Congress is not forcing this man to seek health care; it is only regulating the manner in which he pays for it. Under current case law, there is a strong argument for the mandate's constitutionality because "the provision regulates economic decisions regarding how to pay for health care that have substantial effects on the interstate health care market."

As Judge Sutton correctly points out, under Wickard as it is currently interpreted, Congress can force Americans to buy products they do not necessarily want: "is it any more offensive to individual autonomy to prevent [Filburn] from being self sufficient when it comes to supplying feed to his animals than an individual when it comes to paying for health care? It seems doubtful that the Wickard Court would have thought so. See Wickard (acknowledging that the law 'forc[ed] some farmers into the market to buy wheat they could provide for themselves')."

If the American people fully understood the case law on this issue, most would agree with Justice Thomas's opinion in Lopez that the Supreme Court's jurisprudence "has drifted far from the original understanding of the Commerce Clause." This drift has not been a positive development. The Commerce Clause has been distorted to give Congress the power to pass a broad set of laws that it may not have the power to enact. The text of the Commerce Clause says that Congress can "regulate Commerce with foreign Nations, and among the several States." The various different tests for what "affects" or "impacts" interstate Commerce are all inventions of the Court, and they have gone too far. The Supreme Court's interpretation of the Commerce Clause has given too much power to the federal government and has disrupted our carefully constructed system of checks and balances.

Those who disagree with Justice Thomas must answer the simple question he posed in Lopez: If the Framers intended Congress to be able to regulate anything that "substantially affects" interstate Commerce, why does the Constitution grant Congress the power to enact bankruptcy laws, or coin money and fix the standard of weights and measures, or punish counterfeiters of United States coin and securities, establish post offices and post roads, or to grant patents and copyrights, or to punish Piracies and Felonies committed on the high Seas? All of these activities "substantially affect" foreign and interstate commerce. The Framers wrote these provisions into the Constitution because they never intended the Commerce Clause to give Congress the power to regulate everything that substantially affects interstate commerce.

As Justice Thomas stated in Lopez: "[p]ut simply, much if not all of Art. I, § 8 (including portions of the Commerce Clause itself), would be surplusage if Congress had been given authority over matters that substantially affect interstate commerce. An interpretation of [the Commerce Clause] that makes the rest of § 8 superfluous simply cannot be correct. Yet this Court's Commerce Clause jurisprudence has endorsed just such an interpretation."

Whether or not the American people support President Obama's health care law, they should hope the Supreme Court takes Justice Thomas up on his invitation to temper its jurisprudence and restore common sense to the Commerce Clause.

David Meyers is a regular contributor to the Daily Caller, and has also provided commentary for outlets such as National Public Radio, the Star Ledger, and Renewable Energy World.

Suggested citation: David Meyers, Commerce Clause Jurisprudence and Original Intent in Health Care, JURIST - Dateline, July 7, 2011,

This article was prepared for publication by Megan McKee, the head of JURIST's student commentary service. Please direct any questions or comments to her at

Link | how to subscribe | © JURIST

Tuesday, July 05, 2011

Constitutional Politics: How Partisanship Will Shape Health Care
12:07 PM ET

Nicholas Battaglia, Albany Law School Class of 2012, is an intern in the school's Health Law Clinic. He argues that the partisan affiliations of the judges coupled with strong legal arguments will result in more successes for the government in the health care litigation...

The constitutionality of the Patient Protection and Affordable Care Act has fostered much debate, particularly with regard to the individual mandate, requiring every American to maintain health insurance. The decision of the US Court of Appeals for the Sixth Circuit finding the mandate constitutional provided the Obama administration with a temporary sigh of relief by finding the individual mandate constitutional as a regulation of interstate commerce. One of the most interesting aspects of this decision cannot be found in its text, but rather in the fact that for the first time a Republican judge, Jeffrey Sutton, broke partisan lines and voted to uphold the law. Until now, all rulings have been dispensed along partisan lines, making it possible to predict the outcome of a case simply by knowing which political party of the president that nominated the presiding judge. Aside from this, with cases pending in the Third, Fourth, and Eleventh Circuits, it is important to note that the Sixth Circuit's decision stands to be influential in the ongoing litigation. Presently, all three circuits have heard arguments pertaining to the matter, and now, armed with the Sixth Circuit's opinion, one may attempt to hypothesize how the others will come down.

The Sixth Circuit relied on Commerce Clause jurisprudence in its decision, concluding that regulating the practice of self-insurance is facially constitutional, first, because it is an economic activity that substantially affects interstate commerce; and, second, because it is a part of a broader national scheme.

To support the finding that the individual mandate substantially affects interstate commerce, the court first distinguished the instant case from United States v. Lopez and United States v. Morrison, both cases in which the Supreme Court found the link between the activities regulated and the interstate market too attenuated. Here the court took a functionalist approach, making use of national statistics, to reason that the link was not too attenuated because "[s]elf-insuring for the cost of health care directly affects the interstate market for health care delivery and health insurance." The court consequently found that "the practice of self-insuring substantially affects interstate commerce by driving up the cost of health care as well as by shifting costs to third parties."

Next, the court aligned themselves with Gonzales v. Raich and Wickard v. Filburn, and applied the aggregation doctrine to the effects of non-commercial activity on the overall interstate market. The Sixth Circuit reasoned that in the aggregate, "Congress had a rational basis to conclude that failing to regulate those who self-insure would undermine its regulation of interstate markets in health care delivery and health insurance." Taking a precedential approach, the court looked at cases within the Sixth Circuit, but also at cases in the Fourth and Eighth Circuits, which upheld statutes by finding that failing to regulate non-economic intrastate activity in the aggregate would undermine the efficacy of an overlying interstate regulatory scheme.

Finally, the court addressed the argument that Congress has exceeded its power under the Commerce Clause by regulating inactivity. Acknowledging that the Supreme Court has never resolved this issue, the Sixth Circuit noted that "[v]irtually everyone will need health care services at some point, including, in the aggregate, those without health insurance." In conclusion, the court found that there is no definitive constitutional bar prohibiting Congress from regulating inactivity, and, even if there were, it would not impact this case due to the unique aspects of health care that make all individuals active in the market.

Florida v. US Department of Health and Human Services currently sits in the Eleventh Circuit on appeal from Judge Roger Vinson's decision in January, finding the individual mandate unconstitutional. Chief Judge Joel Dubina, and Judges Stanley Marcus and Frank Hull are presiding over the case, two of which were nominated by Democratic presidents. The composition of the bench, coupled with the fact that the government in this case advances arguments similar to those already made by the Sixth Circuit, suggests another favorable outcome for the Obama administration.

In its brief [PDF], the government makes a broader national scheme and substantial effects argument, while also employing the aggregation doctrine and a functionalist approach that uses similar national statistics related to health care costs. It claims congressional Commerce Clause power is valid and that the individual use of the health care commodity has a substantial effect on supply and demand in the national market for health care. Additionally, the government's brief tackles the inactivity argument. It posits that paying for health care is inevitable regardless of whether an individual is insured. Essentially, it argues that an individual, who does not purchase health insurance, is gambling whether or not he will need to pay for health care in the future. When he does need to, he will likely not be the only one bearing the cost. While the government's reasoning differs at times from the Sixth Circuit's, the conclusions they draw are fundamentally similar, and in light of the Eleventh Circuit's composition they are particularly likely to be well received.

Furthermore, in fending off Florida's claims the government draws on United States v. Maxwell, which involved a ban on the possession of child pornography. Initially in 2004, the Eleventh Circuit had invalidated the ban. However, after the Supreme Court handed down its decision in Raich, the Eleventh Circuit used the broader national scheme rationale and the aggregation doctrine to expressly overturn its earlier decision in Maxwell, reflecting the jurisprudential expansion of congressional power to regulate purely intrastate matters under the Commerce Clause. This argument is identical to the way the Sixth Circuit interpreted the effect of Raich in United States v. Bowers; essentially the Sixth Circuit version of the second Maxwell case. However, it is much more likely to be successful because it shows a clear progression Commerce Clause evolution, particularly in the Eleventh Circuit, and it is likely to be very persuasive.

There are currently two cases concerning health care reform in the Fourth Circuit. However, in Liberty University v. Geithner, serious issues of standing must be overcome, making Virginia v. Sebelius the more consequential of the two appeals. The case sits before Judges Andre Davis, Diana Motz, and James Wynn; who were all appointed by Democratic presidents.

Again, the government's brief provides similar arguments to those used in the Sixth Circuit's opinion. The government shares the Sixth Circuit's view that shifting health care costs to other participants in the health care market increases the overall cost of health care. Likewise, they both use national statistics regarding health care costs and draw on Raich and Wickard to justify the argument that the intrastate market has an aggregate impact on the interstate market. However, the government's argument is less convincing than those made in the Eleventh Circuit and by the Sixth Circuit because it failed to bolster its reasoning through a comparison to Maxwell. If a parallel had been drawn to this case, it would have served to explain more substantially how a purely intrastate activity—possession of child pornography—could affect the larger interstate market. While the government is certainly still on solid ground, its failure to compare Raich to circuit-specific cases weakened the overall strength of its aggregate argument.

Nonetheless, the government did notably distinguish the instant case from Lopez and Morrison. To do so, the government drew on Heart of Atlanta Motel v. United States, which established that a purely intrastate business could have an interstate impact. The government furthered this case to establish and explain how the ease of modern transportation has expanded the contours of congressional Commerce Clause regulation. Persuasively, it argues that travel permits individuals to cross state lines for medical care, and even that some hospitals are designated trauma centers for multiple states, but also that illness knows no boundaries and can easily spread to individuals travelling far from home. This is contrary to congressional attempts to regulate what were deemed as purely intrastate activities under the Commerce Clause in Lopez and Morrison, as they primarily involved local actors and did not implicate issues of mobility or interaction between states.

Overall, the government's brief presents legal arguments in favor of finding the individual mandate constitutional that are on solid ground. With no political barriers to hold them back, and with solid legal reasoning on their side, it is likely that the Fourth and Eleventh Circuits will join the Sixth in finding in favor of the Obama administration.

Another health care reform case, New Jersey Physicians, Inc. v. Obama, is on the docket in the Third Circuit. It comes to the court on appeal from the district court's decision granting a motion to dismiss. Similar to Liberty University, the major hurdle for the challengers here is not whether the individual mandate is constitutional, but whether there is standing to litigate. The case is before Judges Michael Chagares, Kent Jordan, and Joseph Greenaway; the first two appointed by Republican presidents, and the last by a Democrat. If the issue of standing is resolved in the plaintiff's favor, for the individual mandate upheld, one of the judges will need to follow the lead of Judge Sutton in the Sixth Circuit. Judge Chagares and Judge Jordan have similar backgrounds. Both have worked for the Department of Justice and have been law professors. However, one could argue that Judge Jordan may be more likely to defect, as he spent time clerking for Judge James Levin Latchum, who was nominated by a Democratic president.

Facing a tough road ahead and a likely circuit split, the individual mandate will probably find itself on the Supreme Court docket for review before long.

Nicholas Battaglia serves as Executive Editor for Lead Articles on the Albany Law Review. In addition to his work at the Health Law Clinic, he has worked as an intern in the health law department of an Albany, New York law firm.

Suggested Citation: Nicholas Battaglia, Constitutional Politics: How Partisanship Will Shape Health Care, JURIST—Dateline, July 5, 2011,

This article was edited for publication by Megan McKee, the head of JURIST's student commentary service. Please direct all questions and comments to her at

Link | how to subscribe | © JURIST

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