NFIB v. Sibelius

Question 1

Two Principles of American Health Care

Answer 1

Fee for service
•Very expensive: 17.6% of GDP
•Does not keep Americans very healthy, despite our wealth

No denial of Service
•You show up at an ER, you will be treated, even if everyone knows you can’t pay
•Causes hospitals to charge higher rates to insurance companies
•Insurance companies raise costs on their customers

Question 2

How American Finance Health Care (4 ways)

Answer 2

1. Out of pocket (no insurance)
2. Employer-financed insurance plans
3. Medicaid, government insurance for poor
   Medicare, government insurance for elderly

Question 3

Insurance problems

Answer 3

Young
•Most likely to be unemployed = lack employer-financed plan•
Won’t purchase their own plan because unlikely to need extensive coverage

Employer-financed plans can’t keep up with rising costs
•Offer bare-bones coverage

Question 4

Affordable Care Act/Obama care-mandates

Answer 4

Individual mandate
•Must purchase health insurance or pay a penalty to the IRS
•Tax credits offered to make insurance affordable for people who aren’t poor enough to get Medicaid

Employer mandate –not challenged
•Employers must provide insurance covering essential services

Question 5

Affordable Care Act (ObamaCare) -Medicaid Expansion

Answer 5

Medicaid Expansion
•States asked to pass law allowing people below 138% of the poverty line to enroll
•Federal government will cover 100% of the new costs for a while
•Eventually, federal government and state will share this cost

If states do not expand, they lose all Medicaid funding

Question 6

Affordable Care Act (ObamaCare) -Misc. (stay on parents insurance)

Answer 6

(Not challenged)
•Stay on parents insurance until age 26
•All plans must cover pre-existing conditions
•Websites allow consumers to comparison shop for plans

Question 7

Issues (3)

Answer 7

1. Whether the individual mandate is within Congress’ power under the Commerce Clause.
2. If not, whether the individual mandate is within Congress’ power under the Taxing and Spending Clause.•Congress need only win one
3. Separately, whether Medicaid expansion is within Congress power under the Taxing and Spending Clause.

Question 8

Individual Mandates/Dispersion in Judges opinions

Answer 8

1.Five justices find a Commerce Clause violation
•Roberts, Scalia, Kennedy, Thomas, Alito

Four justices disagree
•Ginsburg, Breyer, Sotomayor, Kagan

2.Five justices find no Taxing and Spending violation
•Roberts, Ginsburg, Breyer, Sotomayor, Kagan

Four justices disagree
•Scalia, Kennedy, Thomas, Alito

Question 9

Medicaid Expansion- Dispersion of Judges stances

Answer 9

Seven justices found a Taxing and Spending violation
•Roberts, Scalia, Kennedy, Thomas, Breyer, Alito, Kagan

Two justices disagree
•Ginsburg and Sotomayor

Question 10

Roberts: Limits of Commerce Clause

Answer 10

•“The Constitution grants Congress the power to ‘regulateCommerce.’ The power to regulate commerce presupposes the existence of commercial activity to be regulated.”

“As expansive as our cases construing the scope of the commerce power have been, they all have one thing in common: They uniformly describe the power as reaching ‘activity.’”

Question 11

Does this rule fit the facts? –> Responses to Limits of commerce clause arguments (COMPELL) V. rational basis

Answer 11

Roberts says yes
•“The individual mandate…does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product…”

Ginsburg says no
Congress had a rational basis for concluding that the uninsured, as a class, substantially affect interstate commerce.”•People “without insurance consume billions of dollars of health-care products and services each year.”

Question 12

Roberts: Legacy of Wickard

Answer 12

•“The farmer in Wickard was at least actively engaged in the production of wheat, and the Government could regulate that activity because of its effect on commerce. The Government’s theory here would effectively override that limitation.”

Question 13

Ginsburg: Legacy of Wickard

Answer 13

•“It is well established by decisions of this Court that the power to regulate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices.”

“[F]orcing some farmers into the market to buy what they could provide for themselves” was, the Court held, a valid means of regulating commerce….
•Langauge from Wickard v. Filburn

Question 14

Roberts: Necessary and Proper Clause (does not license + powers)

Answer 14

•Clause “does not license the exercise of any ‘great substantive and independent power[s]’ beyond those specifically enumerated.

Does not create new power for congress
allows Congress to exercise existing powers using the strategy it wants

Question 15

Roberts: Legacy of Raich

Answer 15

•Angel Raich was not engaged in economic activity, but was punished. Isn’t this case the same?

Yes. Raich “concerned only the constitutionality of ‘individual applications of a concededly valid statutory scheme.’”
•Are most people who possess pot like Angel Raich? No –they bought their pot or they’re going to sell it.

If Congress can regulate drug sales as commerce
•It can regulate possession from non-economic activity with the Necessary and Proper Clause

Question 16

Ginsburg: Legacy of Raich

Answer 16

Language from Scalia’s opinion in Raich
•“Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. The relevant question is simply whether the means chosen are ‘reasonably adapted’ to the attainment of a legitimate end under the commerce power.”

Congress can force insurers to cover pre-existing conditions under the Commerce Clause
•That raises health insurance costs => people lose their insurance
•If EVERYONE has health insurance, you can spread those costs around

Question 17

Roberts: Taxing and Spending (tax or penalty)

Answer 17

Is this a tax or a penalty?
•If it is truly a penalty (like criminal punishment or REALLY heavy fine) then the federal government is engaging in police powers

What does a tax look like?
•Does not matter if its called a tax, fee, surcharge or penalty
•If it looks like a tax, quacks like a tax, it’s a tax
1. Must not be an exceedingly heavy burden
2.cNo scienter requirement (intent to commit crime)
3.cPayment to IRS, not agency regulating behavior (in this case Department of Health and Human Services)

Question 18

Scalia: Taxing and Spending (C. imposed a penalty)

Answer 18

“The fact that Congress (in its own words) ‘imposed…a penalty,’ for failure to buy insurance is alone sufficient to render that failure unlawful. It is one of the canons of interpretation that a statute that penalizes an act makes it unlawful.”

“And the nail in the coffin is that the mandate and penalty are located in Title I of the Act, its operative core, rather than where a tax would be found—in Title IX, containing the Act’s ‘Revenue Provisions.’”

Question 19

Medicaid and Medicare

Answer 19

Both are mostly federally funded
•With some state funding

Both are mostly state-administered
•With some federal bureaucratic requirements

Medicaid
•Tied to the poverty line which is woefully out of date
•Helps only the absolutely poorest of the poor