Why does Eric Claeys think the Affordable Care Act is unconstitutional and why does he predict the Supreme Court will protect it anyway?
[Note: There have been many important developments on this question even within the last few weeks. The Justice Department wants to strike down the ACA again. We’ll talk about this in class, but I’d recommend doing some background reading on this, too]
Constitutional Law (Powers) Spring 2019 
the lawsuits that are challenging Obamacare have focused on Section 1501 of the statue where “insurance mandate” is mentioned. This section, which went into effect back in 2014, would require every American citizen to have health-care coverage or to pay an annual penalty with his tax return.
One of the reasons that Eric Claeys believes, that the Constitution does not allow the United States government to force people to buy insurance is that in the commerce clause, located in Article I, Section 8, of the Constitution. It states that it gives Congress the power to regulate Commerce. Which includes phone lines, waterways, boats, rails, and train. But because it dose not mention anything of insurance regulation, if Congress was to pass a bill that deals with an issue that the Constitution does not mention, then technically Congress is unconstitutionally giving power to itself.
But because only one mandate is considered unconstitutional it does not mean that the entire law is unconstitutional only that part should be voided and not the whole law.
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Great answer, Javier – but don’t forget the second part of the question about why the author still predicts the ACA will survive (we’ll take this up in class today anyway)
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An argument he makes for why the Affordable Care Act is unconstitutional is that it requires all American citizens,
“either to maintain health-care coverage or to pay an annual penalty submitted with his tax return. In most cases, the penalty will be around $750, subject to inflation adjustments.” He makes his argument for this being unconstitutional by asking if the Constitution allows the government to “compel people to buy insurance.” The Commerce Clause is used to support that the Affordable Care Act is indeed constitutional but Claeys argues otherwise. He believes that it is a stretch of power to use the Commerce Clause to support the ACA. The Commerce Clause is meant to be used for interstate trade, and health care is certainly not something that is shipped or traded.
He predicts the Supreme Court will protect it anyways because if it is looked at from a liberal/conservative standpoint, the vote would come down to Justice Anthony Kennedy. However, in most cases the conservative judges lean on judicial restraint and originalism. Depending on which attachment they lean towards and how they apply that attachment to the ACA, some of them may decide that it is constitutional and vote to protect it.
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Good summary here, Kevin. And I’m glad you raised the judicial restraint/originalism issue. The author seems to suggest there is a tension between the two – something we’ll discuss further today
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The article starts off by mentioning “In December 2010, Judge Henry Hudson of the Eastern District of Virginia held in Virginia v. Sebelius that a crucial provision of Obamacare — the “individual mandate” to purchase health insurance — is unconstitutional.” The supreme court declared the individual mandate unconstitutional. Administratively, if the mandate is declared invalid, it is extremely difficult to imagine how Obamacare’s new coverage expansions will be financed. On that basis, it is quite likely that Justice Thomas, the Roberts Court’s most thoroughgoing originalist, will follow Judge Vinson and find Obamacare unconstitutional in its entirety. Claeys thinks the Affordable Care Act is unconstitutional because of the reasons I stated. He also mentions
Charles Kesler has noted, the American people and (especially) state and federal legislators “have acquired the bad habit of reflexively deferring to the Court on questions of constitutionality.” We would be much better off if we were in the habit of respecting Court opinions as President Jackson suggested, by giving them “only such influence as the force of their reasoning may deserve.” In that situation, Obamacare’s supporters will almost certainly try to take advantage of the bad habits Kesler has described.
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“Administratively, if the mandate is declared invalid, it is extremely difficult to imagine how Obamacare’s new coverage expansions will be financed.”
You’ve hit on an important point here, Ola: Namely, if the mandate is declared unconstitutional or repealed by Congress (and it was repealed in Trump’s tax reform bill), then is the entire law doomed? Traditionally, this would not be so under a doctrine known as “severability” – which, in short, means that when one part of a law is struck down, the rest still stands.
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The Affordable Care Act often viewed as a champion for bring healthcare reform and a step closer to universal health-care , has been challenged on its constitutionality. According to Claey, the individual mandate of “obamacare” is unconstitutional because the justification for it is the commerce clause. The commerce clause is a clause often cited when trying to expand the federal government’s power to the states, as in the case of the individual mandate. However Claey’s argues that the clause allows congress to regulate congress in two different fields: the modes used to transport the commerce and the goods and services been traded,which the individual mandate does not fit neither. Insurance is also a state to state bases and there is no trading between states in terms of insurance. The Supreme Court will protect it anyway because of the judicial precedent set forth in various cases that expanded Congress’s clause to another important clause, the necessary and proper clause. In addition in a New Deal era case,United States v. Wrightwood Dairy Company the court ruled in favor of congress stating that they can regulate the price of milk as part of the commerce clause. If the same logic applies to the Affordable Care Act , then the rationale behind is that congress can control the prices of health-care services traded across state-lines.
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Sarah, I’m happy you’ve brought in the “stare decisis” issue here (“let it stand” – the principle upholding precedents). This is another concept we can add to the list of things (originalism, judicial restraint) that conservative justices value, but which may, at times, come into conflict with each other
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Eric Claeys provides a clear argument opposing the constitutionality of the Affordable Care Act, or as notoriously known ‘Obama Care’. He does so by citing the commerce clause, located in Article 1, Section 8, of the constitution. This clause provides Congress with the “power to regulate Commerce…among the several States.” Moreover, it authorizes Congress to regulate two general fields of activity. The first, it is comprised of the machinery of commerce; train cars, rails, phone lines, waterways and boats by which “interstate trade is conducted or shipped” (Eric Claeys, Obamacare and the Limits of Judicial Conservatism). I underlined interstate trade due to its ambiguous definition. In contemporary times interstate trade has obtained different definitions from that of what the founding fathers had previously defined it. Thus, depending on the style of interpretation of the constitution, one concludes different definitions. The second general field of activity consists of the products and services that are traded interstate.
Claeys protects this argument by stating the following: “Neither of these categories covers the individual mandate…The purchase of insurance is not an instrumentality of trade, like a broadband cable. Moreover, health insurance need not be — and most of it is not — purchased across state lines.” This is somewhat true, since insurance is regulated by the states, therefore Americans can obtain coverage only in the states where they currently reside. It is under this argument that Claeys thinks that the Affordable Care Act is unconstitutional.
Yet, as a rebuttal, he proposes that the Supreme Court will indeed protect it. “Longstanding Supreme Court commerce-clause doctrine, however, lets Congress regulate a third category of activities — local activities that “substantially affect” interstate commerce” avers Claeys. This power does not originate from the infamous commerce clause itself but it actually derives from the “necessary and proper” clause, also in Article I, Section 8. This nail-biting, backfiring, subject to various interpretations gives Congress auxiliary “power to make all Laws which shall be Necessary and Proper for carrying into Execution” all of the other powers that the Constitution explicitly grants to the national government — including the regulatory power granted in the commerce clause. Thus, given the interpretant, the Affordable Care Act will be protected by the Supreme Court under the “necessary and proper clause”.
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In the end, it was the “tax and spend” clause, but you nonetheless have done really well to outline the judicial precedents here, Albi. We’ll talk about them more in class.
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Eric Claeys makes a prompt argument into the legality of the Affordable Care act in his article, he mentions the different moving parts that have a direct interest in the healthcare system. With this in mind he states that the power of the Republican party is again being tested since the Civil War. At first the gravity of this claim seams exaggerated but the material condition of the state due to Obamacare left many people choosing sides on where they stood on the policy. For most Republican legislators running for office they took a stance against the universal healthcare act. Healthcare was a hot topic issue throughout the media, whether the Affordable Care Act (ACA) provisions were constitutional, as they would impose on citizens.
Reviewing the different cases in Virginia v. Sebelius, where Judge Henry Hudson of Virginia found that mandating people to purchase coverage was unconstitutional. Other courts went further like Judge Roger Vinson in Florida v. United States Department of Health and Human Services, where he declared the entire ACA unconstitutional. The different justices who at the time sat on the bench were hinged on between judicial restraint and originalism, when speaking on conservative judges. The Supreme Court did not have a consensus to repeal the act, as the justices understood their positioning.
The insurance mandate which was declared unconstitutional by Judge Hudson, but this provision makes healthcare a must for all citizens in order for health reserves to be developed for sick individuals. The necessary and proper clause makes the mandate legal as the legislators has the right to impose fees onto its laws. The question that arises is whether the Supreme Court believes this law to be unlawful, the answer is no, the courts continue to uphold the ACA as it was done through the proper channels.
On Claeys idea of the Supreme Court protecting ACA, it must review all laws based upon the constitutionality of it, and if it fits the criteria the law shall remain on the books until repealed by congress. The author mentions the New Deal days as justices were eager to see a centralized national administration and I agree with his position. Justices reviewed the New Deal acts and were not the least eager to shutdown these projects. The main thing to take away is the commerce clause’s usage, falling within that fence judicial review can take many different directions with historical precedent showing to maintain the law.
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The biggest reason why Eric Claeys and other opponents of Obamacare believe that Obamacare is unconstitutional is due to Section 1501. This is the provision that established the individual mandate, which imposes a $750 tax on anyone who does not purchase insurance. Claeys argues that the commerce clause in Article 1 does not give Congress the power to impose the tax created by Obamacare. According to Claeys, the Commerce Clause only give Congress jurisdiction over “instruments of trade” and trade over state lines. Health insurance is not a fundamental instrument of trade like roads, waterways, or railways are. These items are essential to the proper function of the American economy, thus Congress must have a way of controlling and protecting it. Claeys then cites the fact that most health insurance is bought within state lines, and is rarely bought over state lines. Claeys also argues that the Commerce Clause can only regulate actions people make, not actions people do not make. Allowing Congress to pressure people against their will into a contract with a private entity creates an awful slippery slope.
The Supreme Court has an established doctrine that allows Congress jurisdiction over trade that “substantially affects” interstate commerce. This doctrine stems from the “necessary and proper” clause of Article 1. Claeys claims that the Congressional findings show that leaders believed that because insurance companies are so large, to provide adequate coverage for all their customers they must purchase goods and services over state lines. The individual mandate would increase the amount of customers insurance companies must provide for, thus increasing the amount of business they must have over state lines. Claeys believes this logic is enough to satisfy the constitutional requirement for the Commerce Clause. He goes further by addressing Supreme Court precedent in issues involving the use of the Commerce Clause, specifically United States v. Wrightwood Dairy Company and Wickard v. Filburn. In both cases, the Supreme Court upheld the use of the Commerce Clause, even when the petitioners argued that their actions were not directly involved in interstate trade. The Supreme Court specifically said in Wickard v. Filburn, that any restraint on the Commerce Clause must come from political means, not judicial. Here Claeys describes the two different types of conservative justices. There are justices such as Clarence Thomas, that emphasize an originalist approach to judicial interpretation. These justices focus on what they believed the authors of the Constitution intended a constitutional provision to be used. Then there are justices such as John Roberts, Antonin Scalia, and Samuel Alito are more attracted to a restrained form of judicial interpretation. This form of judicial interpretation of the constitution emphasizes the importance of precedent. The precedent regarding the Commerce Clause is clear in Wrightwood Dairy case and the Wickard case. The originalist method of reasoning will conclude that Congress has overstepped the boundaries of the constitution, eliminating the previously established precedent. Because most of the conservative justices on the bench favor judicial restraint over originalism, Claeys predicts that at least one conservative justice will side with the liberals and protect Obamacare. In an effort to protect judicial precedent and to uphold a piece of legislation that survived the political process. Conservatives that follow judicial restraint believe that it is not the role of a judge to replace congressional policy. Legislation that passes Congress will follow the will of the people more closely than an opinion of an appointed judge.
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This is great, John – thanks. One small point I’d make is that I’m not sure the author himself accepts the commerce clause argument, but rather he points out that precedent is in many ways against him here (e.g. Wickard v Filburn). What does a conservative, judicial restraint judge do when they see a bad precedent? That’s the million dollar question!
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Eric Claeys think the Affordable Care Act is unconstitutional because he found the “individual mandate” to purchase health insurance is unconstitutional. The portion of the bill that lends to the argument of its unconstitutionality is the individual mandate in which it requires all citizens to have/purchase health insurance. Forcing someone to purchase something is beyond the power allowed to the legislative and executive branches by the constitution. If so, the individual mandate would be a grant of limitless legislative and regulatory power. People are considering it to be a bad thing that they are being fined if they don’t get health care. Its unconstitutional because we should have the ability to do and spend our money on what we please. Then theres another point Eric Claeys mentions in which the individual mandate exceeds the scope of Congress’s powers, both under the Commerce Clause and under the Necessary and Proper Clause. The Constitution does not give Congress the power to create commerce in order to regulate it.
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Eric Claeys thinks that the Affordable Care Act is unconstitutional for several reasons. The first is that he perceives it allows for the federal government to overstep the limits of its power defined in our constitution. In addition because of the scope of the law itself. Also because it provides a threat to self-government in our country. He believes that the new entitlements it establishes will incite the development of constitutional problems that we will have to contend with. Claeys believes that the commerce clause does not cover the individual which according to him makes the law unconstitutional.
He believes that the supreme court will protect Obamacare because the republicans on it will not vote together as a block to strike it down as unconstitutional. Claeys thinks that only 4 of the republicans on the supreme court will vote that it is unconstitutional. Likewise Claeys believes that Justice Kennedy will not tow the party line with his vote on the matter. In his mind all 5 republicans on it need to vote in this manner for Obamacare to be struck down as unconstitutional. However he does at the same time admit that a mandate challenge to the law has some potential for success.
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The constitutionality of the Affordable Care Act is questioned, in this article, under the Commerce Clause of Section 1, Article 8. Claeys believes that it is beyond the powers of Congress to mandate that individuals purchase health insurance. It seems to me that the Supreme Court would be unlikely to share this view, as the enforcement of this mandate is through tax incentives. If individuals were being thrown into prison for not purchasing health insurance I believe that the Supreme Court would hold a different view. The Supreme Court also faces the precedent set during the period of the new deal. After FDR’s court-packing threat, the Supreme Court took a very passive stance in regards to social services, and a Chief Justice such as Roberts is unlikely to shift that tide.
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This is a nice distinction, Adam: “It seems to me that the Supreme Court would be unlikely to share this view, as the enforcement of this mandate is through tax incentives. If individuals were being thrown into prison for not purchasing health insurance I believe that the Supreme Court would hold a different view.”
But you also note that political considerations are perhaps at play, with Roberts reluctant to go down the same confrontational path as the New Deal justices. The question then would be: was the decision to uphold the ACA a judicial or political one?
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In the article Obamacare And The Limits of Judicial Conservatism by Eric R. Claeys. Claeys explains the complications of Obamacare. He states that “It establishes a vast array of new entitlements, cost controls, and regulations over the health sector that comprises one-sixth of the U.S. economy”. He says that it creates many layers of tasks, which are inefficient for the government to participate in. Also the idea of free healthcare is unconstitutional because of individual mandate; the idea that healthcare should be marketable. Despite the controversy of the healthcare being unconstitutional, the Supreme Court will still protect it because The Supreme Court extended the effective reach of the commerce clause. They mostly let Congress handle one third of its activities. Especially matters regarding law making. And since Congress is focused on regulating commerce, congress will not agree with Obamacare being repealed. Obamacare is a form of commerce and revenue for congress considering that sick people are the one in need of the healthcare plan.
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Claeys believes the Affordable Care Act is unconstitutional because the Supreme court is split in half with a wildcard as a tiebreaker, Justice Anthony Kennedy. It is very hard to predict because most judges lean towards originalism or judicial restraint and the judges can lean either way. He believes upholding Obama care depends on the President who holds office. He also speaks about it being unconstitutional because Obama basically forced everyone to participate in this law but the commerce clause that is being thrown around in this article only allows Congress to regulate interstate commerce, not engage in it which is what Obama basically forced people to do by withdrawing $750 from taxes, making it roughly the same cost for coverage for the sick and healthy, but it makes it more attractive to participate because instead of seeing their money being withheld during taxes, they essentially spend it covering the insurance of others because they help build a reserve pool with the insurance companies that help cover other participants who do get sick and need coverage. Claeys says that health insurance is not an instrumentality of trade so there is no – or very little- interstate trade in insurance because it can only be purchased in one’s own state.
He also predicts the Supreme Court will uphold it because no one ever took notice about people voicing their concerns over the law being constitutional and because the necessary and proper clause helps Congress enforce its regulations when need be and allow Congress to regulate parts of an interstate transaction which is what they want to define as purchasing insurance. This is backed up by Claeys mention of the creation of the Bank of the United States and whether or not it was authorized by the necessary and proper clause that Congress used as a reasoning.
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Eric Claeys believes the Affordable Care Act, also known as “Obamacare” is unconstitutional based on what it incorporates and an analysis of originalists. Based on the Virginia v. Sebellius, the “individual mandate” to purchase health insurance is unconstitutional. Not only that, but Florida v. United States Department of Health and Human Services declared the ACA to be overall unconstitutional by Judge Vinson. According to “ObamaCare and the Limits of Judicial Conservatism,” Article 1, Section 8 of Constitution gives Congress the power to “regulate commerce among several states.” This covers the essentials of commerce and the goods/services that are being traded in commerce. Eric Claeys asserts that this means it does not cover the individual mandate in ACA, making it invalid towards the constitution. Claeys states an originalists analysis that “mandate is not commerce” and “imposing a mandate does not regulate.” He also mentions how a pure originalists believes that an individual mandate exceeds congress power, which also makes it unconstitutional. Nonetheless, Claeys believes the Supreme Court will protect the ACA regardless, because the Supreme Court Commerce Clause doctrine gives Congress power to local activities that significantly impact interstate commerce. This will then allow the Supreme Court to defend the ACA, despite the analysis of regulating commerce.
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Eric Claeys thinks the Affordable Care Act is unconstitutional because of the individual mandate. This requires people to buy healthcare/insurance. The reasoning for this is so that health companies could have some money in reserve. Without this act people would buy healthcare when they were sick instead of always having it. The individual mandate is unconstitutional because there is no where in the constitution that allows the government to force people to get healthcare. People try to counter this by saying that the commerce clause supports this mandate. The commerce clause doesn’t explicitly support this mandate, you have to go one step further and utilize the necessary and proper clause. Using this view, the commerce clause would apply because they would now be regulating the products sent by companies between states that are necessary for healthcare. This only works with an expansive view of the necessary and proper clause.
The supreme court decision making is not easy to predict. You can group the justices into liberal and conservative categories but that doesn’t always mean that they are going to vote that way. There is also different ways that the justices interpret the constitution which would either support or go against the main argument against the ACA. It all depends on how the justices view the argument, do they go along with the expansive view of the commerce clause and necessary and proper clause, or do they not. If they do they won’t vote against the ACA.
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Reading Eric Claeys’s piece from 2011 in 2019 is interesting as we can determined that he was right in advising conservatives to not put all their eggs in a basket with regards to the Supreme Court justices tentative rulings on the Affordable Care Act. As we can now see, it wasn’t Justice Kennedy that was the divisive determining vote for sustaining Obamacare; rather it was Justice Roberts, of whom many conservatives were certain they could rely on the Chief Justice for a right-leaning vote.
That aside, Claeys opinion, which is shared by many, on why the ACA is unconstitutional largely lies in the individual mandate provision where it is required of all citizens that they must purchase insurance even if they are in a position where they might not need it any time soon. The questions he poses for those aiming to repeal Obamacare (at least in the context and lack of hindsight of 2011) and shed light on its unconstitutionality are:
1. “how can Obamacare claim to ‘regulate’ interstate ‘commerce’ when the act mandates that citizens purchase a service they do not want to buy?
2. “how can Obamacare claim to be ‘proper’ under the necessary and proper clause when it bloats and constipates the national government?
3. “how is it ‘proper’ to divert regulation of health care and insurance from the state and local governments that are more accountable and responsive to the American people?
Even with this qualms in mind, Claeys correctly predicted that the Supreme Court would protect the ACA. He is of the perspective that each justice, although he or she may have a history of judicial rulings in line with a particular political school of thought, do not necessarily solely decide cases politically. “Serious judges do not explicitly aim to advance either the partisan interests of the Republican or Democratic parties or their own ideological views about the pros and cons of various policy alternatives.”
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I thought it was interesting looking back on it, too. His prediction was basically spot-on. I’m glad you mentioned these three questions, too, as they are clearly at the core of his argument. One further question that comes from your comment is this: If, as you note, the author thinks justices are not motivated by politics, then what does he think motivates their decision-making? For Chief Justice Roberts, there are many theories floating around, including his desire to preserve the stature of the Court, his preference for judicial restraint, maybe his unwillingness to confront precedent.
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Eric Claeys believes that the Affordable Care Act is unconstitutional, in particular, the individual mandate because it is not truly covered under the commerce or necessary and proper clause in Article 1 Section 8 of the Constitution. He argues that although people often refer to the commerce clause as a basis of the constitutionality of the individual mandate it is not directly correlated because insurance is not often traded interstate such as traditional goods. In fact, insurance is state regulated and most often confined within state lines. The necessary and proper clause certainly expands Congress’ powers, however, precedent demonstrates that this clause still doesn’t fully declare the mandate constitutional. Eric Claeys cites two other cases that ultimately put power in the hands of Congress, but one important distinction he makes between the cases and the mandate is inactivity versus activity. The individual mandate essentially forces an activity from people who do not wish to engage or be apart of a system. This for some people seems like a huge reach of the government into everyday people’s lives and their ability to make decisions. He sees the court upholding the mandate because we can’t predict the court to act exactly along party lines. Different types of judges reading the Constitution from certain perspectives such as originalism or judicial conservatism may end up in the mandate surviving.
-Rumer
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Great comment, Rumer – especially the point about “activity” and “inactivity”. This is really the core argument of people who oppose the mandate: They say it’s one hell of a stretch to apply the commerce clause to things people are NOT doing. The validity of this argument we’ll discuss more in class.
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Claeys thinks the affordable Care act is unconstitutional because of the individual mandate which requires every individual to purchase insurance or to be taxed (fined) .In support of his argument, he notes that if a specific power is not enumerated to Congress then the Constitution does not permit it. Specifically, the Constitution doesn’t give Congress legislative power to address issues such as health insurance. He outlines 3 enumerated powers Congress have and why they cannot be used to uphold the individual mandate. He reasons,
“First, as noted above, laws covering in-state insurance purchases do not regulate “Commerce…among the several States.” Second, a “mandate” is not “commerce.” And third, imposing a mandate does not “regulate.” The next clause, the taxing clause, be argued could not be used either. Even though the wording in Obamacare tries to levy a penalty and call it a tax, it’s just that- a punishment. And last he mentions the commerce claus but obamacare’s individual mandate cannot be justified commerce clause.
Despite this he still believes the Supreme Court will uphold the act because of judicial restraint which would essentially defer the constitutionality of the act to Congress. He cited two cases Wrightwood Dairy And Wickard as evidence to support his beliefs. “If one assumes that Congress has the power to control the prices and volumes of insurance and health-care goods and services that are traded interstate, Wrightwood Dairy and Wickard provide some justification for Congress to mandate that citizens buy insurance. The mandate can be portrayed as making effective the interstate controls Congress wants to set.” He adds Congress will attempt to use the necessary and proper clause to force individuals to enter into the binding contract of purchasing insurance. Next he explores the idea that a supreme court’s ruling in some instances have limited influence on congressional decisions. Last, he adds that a supreme Court decisions is also only effective if elected officials choice to respect it.
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Excellent summary, Sarah-Hannah – thanks. We’ll get into critiques of this in class today.
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Claeys believes the individual mandate makes the entire act unconstitutional based primarily on his own political leanings and not so much on constitutional objections, Congressional limits, nor Supreme Court precedent. While his argument does appear compelling, he neglects to acknowledge, as Roberts and Co did not, that there are plenty of taxes that are imposed on the individual and plenty of credits applied to individuals who engage in specific activities – and that a rose by any other name still smells as sweet. If it looks like a duck, walks like a duck, and quacks like a duck – it’s probably a duck. Or in the medical field: “when you hear hooves, think horses not zebras (unless you’re on the savanna).” A tax by any other name is still a tax – and that is, as the court found, a compelling argument for the constitutionality of the mandate.
There was also discussion that the necessary and proper clause could also have applied as his conclusion that insurance is not interstate commerce ignores that healthcare is not merely an intrastate commerce. For an individual who lives in NJ but works in NYC: is his health insurance interstate or intrastate? What about the individual who is traveling from LA to NYC and needs to visit the emergency room – is that interstate or intrastate commerce related to healthcare and insurance? Yes, there are some activities that are genuinely intrastate commerce – but in this increasingly globalized world they remain very few. And while in this case there may be those who wish that the commerce clause was less expansive, this expansiveness of the clause is necessary and proper to the ability of the federal government to regulate the overall economic viability of the US in other ways that the opposition to Obamacare particularly enjoy.
Generally, it would be unwise to limit the power of Congress simply due to drummed up, politically biases – the “us vs them” political game that resulted in Claeys’ poll result showing opposition to Obamacare but ignores that the opposition is based entirely on the slang derogatory name given the AHCA by pundits and when the respondents to the poll were asked about the individual parts of the AHCA were generally in approval.
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There are many great points here, John, but this one struck me as particularly useful for our class discussion: “Yes, there are some activities that are genuinely intrastate commerce – but in this increasingly globalized world they remain very few.”
This is a strong argument for a “living constitution” when it comes to the economy, but, of course, conservatives like Claeys would respond: If we accept this view, then there’s almost nothing that the federal government cannot regulate. In the long-run, what sorts of problems could this pose? Perhaps governments that stay in power by taking hard-earned money from the wealthy and redistribute it. Perhaps an economy that lacks dynamism because it is hamstrung by government intrusion.
The broader debate is very interesting: How much has the economy changed, and how much should government do to adjust to this?
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Eric Claeys thinks that the Affordable Care Act is unconstitutional because it undermines the commerce clause which is presented in Article I, Section 8, of the Constitution. Claeys identifies that the most common argument opposing the individual mandate is that this particular clause allows Congress regulate Commerce…among several states. Because of this clause, Congress is able to control each proposal based on two fields of activity. These two fields include instrumentalities of commerce and goods and services that are traded via interstate. The individual mandate does fall into neither of these categories because health insurance is not bought across state lines. Insurance is typically mandated by individual states. A third category field that permits Congress to regulate Commerce is the local activity “substantially affects” interstate trade. They are able to do this on the grounds that doing so is necessary and proper for carrying into effect its power to regulate interstate commerce.
Although Claeys states that the Affordable Care Act is unconstitutional, he does believe that the Supreme Court would allow for it to pass based on the fact that a great number of Americans actually wanted the act to pass.
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Claeys thinks that the Affordable care act is unconstitutional because in Article 1, Section 8 only really defines two fields of activity which are the instrumentalities of commerce and then the other is if the goods or services are traded interstate. He further mentioned that neither of these activities cover the individual mandate. Insurance is not an instrumentality of trade and also health insurance health insurance doesn’t really cross state lines due to being covered in their own state. Hence, interstate trade is very minimum in insurance. Additionally, Claeys mentioned that is the Congress can force people into contracts because then it would be considered an abuse of power. Thus, if the necessary and proper clause is in fact justified then if the constitution limits the congress’s power. Lastly, the Claeys predicts that the Court will protect it because they will argue that they try not to go against what Congress does or any branch especially if it brings tension and conflict.
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Eric Clay thinks the Affordable Care Act is unconstitutional because it goes against located in Article I, Section 8, of the Constitution. This clause gives Congress “power to regulate Commerce…among the several States.” because the Obamacare is going against what the Congress and the Constitution believe in. Healthcare is something people will fight about because people want free health and it goes against what people idea of life, liberty and happiness.
The Republican Party believe that Obamacare is free and how can we make profit off it and who will this Obamacare benefit and why people would need free stuff. Obamacare is this idea of freedom and happiness because people can get their health check for free. I believe the idea of the Obamacare is something to give people hope and freedom. Eric Clay believe it does not follow what Constitution believe in and what it follows.
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According to Eric Claey, the Patient Protection and Affordable Care Act of 2010 “poses one of the gravest challenges to republican self-government since the Cuvil War”. To Claey, the act, or “Obamacare” as its often referred as, sets up new entitlements, cost controls, and regulations in the health market. Eric Claey thinks that the Affordable Care Act is unconstitutional because, though Article 1 Section 8 of the Constitution is often cited, it is not a strong arguement for the “individual mandate”. Article 1 Section 8 gives Congress “power to regulate commerce…among the several states”. To Claey, the purchase of insurance cannot be considered an instrumentality of trade. According to him, Obamacare will constraint the power of insurance companies. Supreme Court precedent seems to agree with Claey’s claim. The December 2010 decision in Virginia v. Sebelius found that the “individual manadate” of Obamacare was unconstitutional. In a radical decision, in Florida v. The United States Department of Health and Human Services, Supreme Court Judge Vinison declared the Affordable Care Act entirely unconstitutional.
– Sally Balbuena
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Claeys sees that ACA as unconstitutional because the argument that has been used to defend it is flawed. The commerce clause is the main cited authority that has been used to defend ACA. The commerce clause gives congress the authority to regulate commerce among the states. This clause, according to Claeys, authorizes two general fields, the instrumentalities of commerce such as phone lines, waterways, boats and train carts, the other is goods and services that are traded interstate. Health insurance, says Claeys, is neither of those. Most insurance is bought in a respective state, considering that this health insurance is not valid in a different state. Claeys’ argument is that health insurance consists of little or no interstate trade.
He argues, however, that the Court will deemed the ACA as constitutional mainly because of judicial restraint. Supreme Court justices, according to Claeys’ naive heart, often avoid fulfilling partisan goals. He argues that most of the conservative justices are pulled in different directions because of “originalism” and “judicial restraint.” Claeys, however, fails to mention that although these conservative justices go on different directions, they will often end at the same finish line. Meaning, despite their different ideologies, they will often end with the same result.
Republicans, for Claeys, have been heavily relying on the Courts to abolish the ACA. George Will, for example, has pledged for the Courts to save them from the Act. The Court is aware of this reliance on them by partisan actors, and as a result, they will refer their decisions to the elected branches of government. The Court will often seek to maintain its political capital by not taking on controversial cases. As a result, Claeys argues that the Court will either find the ACA unconstitutional or will simply refuse to hear the case.
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Obamacare will restrict the ability of insurance companies to consider health risks when setting insurance premiums. Since coverage will thus cost roughly the same for people who are sick and people who are healthy, healthy Americans will have little reason to purchase insurance until they get sick. But if only the sick purchase coverage, insurance companies will not be able to build financial reserves from healthy customers who are not filing claims in order to finance coverage for the sick customers who are. In the absence of risk rating, the only way to bring healthy people into the risk pool is by compelling them to participate. Indeed, Section 1501 itself calls this compulsion “essential” to the operation of the law.
But does the Constitution really allow the United States government to compel people to buy insurance? The most commonly cited authority for the individual mandate is the commerce clause, located in Article I, Section 8, of the Constitution. This clause gives Congress “power to regulate Commerce…among the several States.” And that grant, in turn, authorizes Congress to regulate two general fields of activity. One consists of the instrumentalities of commerce — such as the phone lines, waterways, boats, rails, and train cars by which interstate trade is conducted or shipped. The other consists of the goods and services that are traded interstate.
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The constitutionality of the Affordable Care Act is brought into question under the Commerce clause. Specifically Section 150. The Commerce clause enables federal government to be able to regulate interstate commerce. Eric Claeys views it as unconstitutional because the services and goods don’t include insurance. Claeys, states that “The purchase of insurance is not an instrumentality of trade, like a broadband cable”. Another argument Claeys mentions is the fact that most insurance isn’t purchased inerstate therefore doesn’t cross state lines and the federal government can’t regulate it.
The Supreme Court will probably uphold the decision to retain and expand federal power. The polarization of political parties makes this case important given that Obamacare is seen as a tax. The upholding of the constitutionality by Chief Justice John Roberts is seen as a betrayal to the political party’s ideology.
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Eric Claeys thinks that the Affordable Care Act is unconstitutional for one major reason found in the Virginia v. Sebelius case. The reason that is brought is that it is unconstitutional for one of the provisions of Obamacare to state that the “individual mandate” to buy health insurance. This can be seen as an unconstitutional provision by Claeys because not every American can afford health insurance or may not even need it therefore it would be unlawful for someone to be forced to purchase it. Additionally, if they were unable to purchase it, they could have been penalized on tax returns. Claeys believes that the Supreme Court will still project Obamacare because if the court is to be viewed as it was then then vote would most likely fall on Justice Kennedy whose vote may put those against Obamacare at a disadvantage. Additionally, the conservative judges could swing to either direction on where it falls on “judicial restraint”.
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