National Federation of Independent Business v. Sebelius: The Patient Protection and Affordable Care Act
- Volume 126
- Issue 1
- November 2012
November 20, 2012
More from this Issue
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To Tax, To Spend, To Regulate
Vol. 126 No. 1 Two very different visions of the national government underpin the ongoing battle over the Affordable Care Act (ACA). President Obama and supporters of the ACA believe in the power of government to protect individuals through regulation and collective action. By contrast, the ACA’s Republican and Tea Party opponents see expanded government as a fundamental threat to individual liberty and view the requirement that individuals purchase minimum health insurance (the so-called “individual mandate”) as the conscription of the healthy to subsidize the sick. This conflict over the federal government’s proper role is, of course, not new; it has played out repeatedly over our nation’s past. But rarely since the New Deal has it surfaced in such a distinctly constitutional guise with respect to economic legislation. Instead, after the Supreme Court sustained broad congressional power seventy-plus years ago, little doubt existed that the federal government generally had constitutional authority to regulate private activity if it chose to do so. The Rehnquist Court’s reassertion of limits on congressional power under the Commerce Clause indicated that some measures may go too far. Still, the fight over the federal government’s proper role in the economic sphere has been largely political, not constitutional. -
Affordable Convergence: “Reasonable Interpretation” and the Affordable Care Act
Vol. 126 No. 1 The constitution of the United States is to receive a reasonable interpretation of its language, and its powers, keeping in view the objects and purposes, for which those powers were conferred. By a reasonable interpretation, we mean, that in case the words are susceptible of two different senses, the one strict, the other more enlarged, that should be adopted, which is most consonant with the apparent objects and intent of the constitution . . . . – Joseph Story (1833) That the Court was sharply divided was not a surprise. The contrasting briefs – including a record 136 from amici – laid out the dispute. Over the extraordinary six hours of oral argument, the Justices actively interrupted the advocates, with Justices Ginsburg, Breyer, Sotomayor, and Kagan directing considerably more words to the challengers, and Chief Justice Roberts and Justices Scalia, Kennedy, and Alito the mirror image, directing far more of their words to the government. So it was not a surprise to find that the Justices produced two starkly warring opinions. One would strike down as unconstitutional the entire Patient Protection and Affordable Care Act, and another would entirely uphold the same law; the two opinions embodied distinctive approaches to the issues at hand, to constitutional interpretation, and indeed, to how to view the world. -
Incompetent Plea Bargaining and Extrajudicial Reforms
Vol. 126 No. 1 For many years, plea bargaining has been a gray market. Courts are rarely involved, leaving prosecutors unconstrained by judges or juries. Prosecutor’s plea offers largely set sentences, checked only by defense lawyers. In this laissez-faire bargaining system, defense lawyers, not judges or juries, are the primary guarantors of fair bargains and equal treatment for their clients. But the quality of defense lawyering varies widely. Bargaining can be a shadowy process, influenced not only by the strength of the evidence and the seriousness of the crime but also by irrelevant factors such as counsel’s competence, compensation, and zeal. And because bargaining takes place off the record and is conveyed to clients in confidence, it is not easy to verify that defense counsel have represented their clients zealously and effectively.