Yesterday, the Appellate Body of the World Trade Organization handed down its report in United States – Clove Cigarettes. The Appellate Body upheld the first instance finding that US restrictions on clove (but not menthol) cigarettes are discriminatory and, therefore, contrary to WTO law.
In the near future, the O’Neill Institute will distribute a briefing paper examining the implications of this decision for tobacco control and domestic regulatory autonomy. In the meantime, first impressions and other thoughts are on our new trade, investment and health blog.
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This post was written by former O’Neill Institute Research Assistant and current Georgetown Law 2L Dinesh Kumar, who attended day three’s morning session of the Supreme Court’s hearing on the Affordable Care Act.
Every aspect of the Affordable Care Act (ACA) Supreme Court oral arguments has been dissected in the days following the historic hearings, including the “severability” issue (dealing with the question of what, if any, provisions of the law are valid if the Court finds the “individual mandate” to purchase insurance to be unconstitutional). Professor Lawrence Gostin of the O’Neill Institute at Georgetown Law also gave his comprehensive take on the previous day’s individual mandate hearing here. As I reviewed the many perceptive blog posts reacting to the severability argument (good examples of which are here, here, and here), I wondered what I could add from the perspective of a law student lucky enough to score a seat inside the courtroom. As a supporter of the mandate – on constitutional, economic, and public health grounds – I’ll briefly highlight three aspects of the proceedings I found troubling.
Justice Kennedy and judicial “restraint”
Severability has always been a concept tied to the ideal of judicial restraint ever since Chief Justice Marshall implored following Marbury v. Madison that while a provision deemed unconstitutional must fall, all other parts of a law should be given “full effect” as long as they are “not repugnant to the Constitution.” Several justices urged restraint on the part of the Court during the severability hearing; Justice Ginsburg called a “salvage job” preferable to a “wrecking operation,” and others repeated that a “half a loaf of bread” was better than no loaf at all. But at one point Justice Kennedy, whose vote will perhaps decide the case, echoed a paradoxical notion of “restraint” put forth by Justice Scalia: That striking down the entire law would actually show more restraint than allowing some portion to stand while killing the mandate. If Congress were allowed to start anew rather than being returned a law that spoiled its intended effect on the insurance industry, his thinking went, the Court would at once be deferential to Congress and true to its own constitutional ideals. Justice Kennedy’s definition of restraint displays a kind of logic that makes it unclear whether he believes the most restrained thing to do would be to uphold or strike down the entire law. Read More
This post was authored by Rory O’Sullivan, Policy Director, from the Young Invincibles.
The Department of Health and Human Services recently released final rules that apply the Affordable Care Act’s (ACA) consumer protections to college health plans starting in Fall 2012. College students will now receive the same basic consumer protections and benefits as all Americans.
Historically, student health plans have exhibited many of the worst practices in the health insurance industry. Some plans cover no more than $1,500 a year in benefits. Others have medical loss ratios as low as 35%, meaning they spend only 35 cents of every dollar in premiums on actual medical care, with the rest going toward administrative expenses and profits. As a result, profit margins on certain college health plans reach 5 times the industry average. Read More
Prior to Tuesday’s arguments before the Supreme Court, I believed that the Court would uphold the health insurance purchase mandate by a comfortable margin. Unlike the Rehnquist Court, the Roberts Court has not made federalism a signature issue, and justices such as Antonin Scalia seemed amenable to the exercise of federal powers consistent with commerce clause precedents. My reasoning, discussed in my earlier blog posting, was that the health care market is the most encompassing national commercial market in America, consuming some 17% of GDP, and with pharmaceuticals, medical equipment, electronic medical records, and insurance claims all moving widely across the nation. The Court’s precedents all pointed toward a broad scope for the commerce authority.
Having heard the arguments on Tuesday, I now believe that health care reform hangs in the balance. Although the tenor of the arguments cannot necessarily predict the result, the Court’s conservative bloc expressed skepticism about the constitutionality of the mandate. Justice Kennedy, often the pivotal vote in close cases, expressed the view that the mandate fundamentally changed the relationship between the individual and the state. Health care reform does do that, but only in the best possible way: by creating a social contract whereby everyone is entitled to access affordable care. And the Affordable Care Act (ACA) establishes this social contract in a way that is in my view clearly constitutional. Read More
Florida v. HHS – a suit brought on behalf of 26 states challenging the constitutionality of the Affordable Care Act (ACA) – represents a rare moment in America’s history. The Supreme Court will determine whether the United States coalesces behind an historical health system reform providing near-universal coverage, or retreats from it.
Although Florida v. HHS raises four constitutional questions – the individual purchase mandate, Medicaid expansion, severability, and the Anti-Injunction Act – undoubtedly the mandate presents the most novel and consequential issue, with constitutional and social policy implications that are far reaching. Why is the constitutional question so original and meaningful in understanding the scope of Congress’ powers? Why is the social policy question indispensable to the future of health care reform? And what is the inter-play between the constitutional and social policy questions?
Novel Constitutional Questions
Integral to the ACA’s conceptual design is the individual purchase mandate, which requires most individuals to pay an annual tax penalty if they do not have health insurance by 2014. Despite the vociferous opposition, the mandate is the most “market-friendly” financing device because it relies on the private sector. Ironically, less market-oriented reforms such as a single-payer system clearly would have been constitutional. Read More
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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.