The BLS Advocate

The ObamaCare Decision: A Roadmap

Twenty-five states joined Florida in its challenge of the ACA: South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Colorado, Pennsylvania, Washington, Idaho, South Dakota, Indiana, North Dakota, Mississippi, Arizona, Nevada, Georgia, Alaska, Ohio, Kansas, Wyoming, Wisconsin, Maine, Michigan, and Iowa. Ultimately, the Court decided to uphold the law. Here, Christopher “Jack” Knorps breaks down the 180-page decision.

CHIEF JUSTICE ROBERTS’ MAJORITY OPINION
Intro: Marbury v. Madison, a brief history of the Court (1-7)
Part I: Procedural History* (7-11)
Part II: Anti-Injunction Act * (11-15)
Part III: Commerce Clause (“CC”) Intro (15)
Part III-A: Government’s Arguments Intro (CC + Necessary & Proper “N&P” Clause) (16-17)
Part III-A-1: CC Destruction (17-27)
Part III-A-2: N&P Clause Destruction (27-30)
Part III-B: Construing the Act as a Tax May Save It From Unconstitutionality (31-32)
Part III-C: Taxing Power is Broad* (33-44)
Part III-D: Ginsburg’s CC Analysis is Wrong (44-45)
Part IV-A: Medicaid Expansion Conscripts States into a National Bureaucratic Army/Coercive† (45-55)
Part IV-B: But States Can Still Sign Up for the ACA’s Medicaid Expansion If They Want† (55-59)
*Majority of the Court
†Roberts joined by Breyer and Kagan

JUSTICE GINSBURG’S CONCURRING OPINION
Part I: Intro to Economic and Social Welfare Reform Decisions! (1-3)
Part I-A: Backdrop of the ACA! (3-5)
Part I-B: More Problems Created by the Uninsured! (5-7)
Part I-C: Cost-Shifting! (7-8)
Part I-D: Congress could have instituted a Single-Payer System, but Chose the ACA instead! (8-12)
Part I-Conclusion: Deference to Congress under CC and N&P Clause! (12)
Part II-A: CC-Framer’s Intent! (12-14)
Part II-B: Only Should Be Struck Down if Congress Plainly Acted Irrationally! (14-16)
Part II-C: ACA Easily Meets the Criterion of the CC! (16-18)
Part II-D: CC Power Does Not Permit Congress to “Compel Individuals to Become Active in Commerce by Purchasing a Product”! (18)
Part II-D-1-a: Roberts is Wrong about Our CC Precedents! (18-23)
Part II-D-1-b: Case Law Does Not Toe the Activity Versus Inactivity Line! (23-27)
Part II-D-2: Roberts’ Fear of the “Broccoli Horrible” is Unfounded! (27-31)
Part II-D-3: Constriction of the CC Hinders Congress’s Ability to Adapt to New Realities! (31)
Part III-A: Guaranteed-Issue and Community-Rating Provisions Lend More Support for Constitutionality! (31-33)
Part III-B: Minimum Coverage Provision Acts Directly on Individuals, not States! (33-36)
Part IV: Taxing Power Broad; Roberts’s CC Analysis Puzzling Since Not Outcome-Determinative! (37)
Part V: Medicaid Expansion Does Not Violate Spending Power –1^st Time Struck Down on Such Grounds# (38-41)
Part V-A: Medicaid Expanded 50 Times Since 1965; Federal Spending Grew 631 MM to 269 BB# (41-45)
Part V-B: Discussion of the Spending Clause and South Dakota v. Dole, 483 U.S. 203 (1987)# (45-48)
Part V-C: Challenge to the Notion that Medicaid Expansion is Unconstitutionally Coercive# (48)
Part V-C-1: Medicaid Expansion is Not a “New” Medicaid Program# (48-51)
Part V-C-2: States Not Being “Surprised” by the Expansion; Look to Bowen, Not Pennhurst# (54-56)
Part V-C-3: Roberts Fails to Draw the Line Where Persuasion Gives Way to Coercion# (56-60)
Part V-D: Agrees with Roberts on Severability of Medicaid & Validity of Individual Mandate# (60-61)
!-Ginsburg joined by Sotomayor, Breyer, and Kagan
#-Ginsburg joined by Sotomayor

JUSTICE SCALIA’S DISSENTING OPINION (Joined by Kennedy, Thomas, and Alito)
Introduction: Concedes that Inactivity Could Come Under Criterion of CC, but Would Extend It Too Far (1-4)
Part I: Uphold Individual Mandate under the CC and Congress can regulate Breathing In-and-Out (4-5)
Part I-A: New York, Printz, Lopez, Morrison teach that CC does not give Congress Carte Blanche (5-10)
Part I-B: Wickard is #1 and Perez is #2 in CC Expansion—but They at Least Involved “Activity” (10-13)
Part I-C: “Activity” Must be Regulated, not “Inactivity,” Such as Failure to Buy Broccoli or Cars (13-16)
Part II: To Say That the Individual Mandate Merely Imposes a Tax is to Rewrite the Statute (16-26)
Part III: Anti-Injunction Act Inapplicable Since Act not Within Taxing Power; “Verbal Wizardry” (26-28)
Part IV: Medicaid Expansion Commands Too Severe a Sanction for States That Fail to Comply (28-29)
Part IV-A: Concedes that Court Gives Congress Wide Leeway in Spending Power since Butler (29-30)
Part IV-B: Cites Huge Growth of “Grants-in-Aid” from $20 BB (adj.) in 1950 to $608 BB in 2010 (30-31)
Part IV-C: If Conditions Attached to Federal Monetary Grants, States Must Have Real Choice (31-35)
Part IV-D-1: Distinguishes Dole: Minimum Drinking Age Act was Not “Coercive” (35-36)
Part IV-D-2: If States Opt-out of Medicaid Expansion, Tax Increases on Residents May Follow (36-38)
Part IV-E: Coercive Nature of an “Offer” Must be Unmistakably Clear (38)
Part IV-E-1: Medicaid Backdrop: States Have a Huge Reliance on Federal Funding for Medicaid (38-42)
Part IV-E-2: The ACA was Clearly Designed so that No State Could Possibly Refuse the “Offer” (42-46)
Part IV-F: Court finds Medicaid Expansion Unconstitutional, but Violates Severability Doctrine (46-48)
Part V: If Two Major Provisions of the Act are Unconstitutional, the Entire Act Must Fall (48-49)
Part V-A: Severability Analysis: 2-Part Test in Alaska Airlines Inc. v. Brock, 480 U.S. 678 (1987) (49-51)
Part V-B: The Evidence of “Togetherness” in the Statute (51-54)
Part V-C: A Quick Note on Standing Before We Apply the Severability Principles to the Act (54-55)
Part V-C-1: Absent Invalid Portions of the Act, Major Provisions could Pose a Threat to Nation (55-56)
Part V-C-1-a: Fears Increases in Premiums & Uncertainties Imposed on Insurance Companies (56-57)
Part V-C-1-b: Uncertainty in Hospital Reimbursements/Reducing Medicare Expenditures (57-59)
Part V-C-1-c: If Major Provisions Fall, Insurance “Exchanges” Cannot Operate as Planned (59-61)
Part V-C-1-d: Employer-Responsibility Assessment is Invalid for Two Reasons (61-62)
Part V-C-2: Unbelievable That Congress Would Have Enacted Minor Provisions Independently (62-64)
Conclusion: The Court Has Saved a Statute That Congress Did Not Write (64-65)

JUSTICE THOMAS’ DISSENT
Dissent: Rescind “Substantial Effects” Test (See separate opinions in Morrison, Lopez, and Raich) (1-2)

The ObamaCare Decision: Student Voices

We asked your classmates for their opinions about the ObamaCare decision. Which Justice got it right? Check out their responses below, and add yours in the comments!

ADAM LUDEMANN, 2014

Adam is the President of the Federalist Society, but the views expressed here are his own. The Federalist Society is a student group whose purpose is to promote a respectful, thoughtful and engaging discourse on campus addressing issues of concern to libertarians, conservatives and the greater student body. They host series of discussions each year featuring topics such as healthcare reform, federalism and economic freedom. Adam encourages anyone interested in further discussion to check out their events on BLSConnect. The Federalist Society does not endorse particular policy positions. 

 I tend to agree with the Roberts opinion and Thomas, Scalia, et al…As a matter of cost reduction, I believe Congress could have better achieved its ends by reforming the tax code…and allowing the purchase of health care insurance… across state lines…

How does this decision affect you?

“As a paralegal at a large corporate firm before law school, I had great health insurance with broad coverage, low deductibles, and responsive customer service. As a law student over the age of 26, I currently have no real choice other than to participate in the BLS-sponsored insurance program, which features higher deductibles, low prescription drug coverage maximums, more restricted coverage, and terrible customer service. The benefit I receive per dollar of health care spending is clearly lower.”

What are your concerns about the practical implications this decision has on health law?

“I believe that many of these differences, and many of the problems with our healthcare system, ultimately arise from employer tax preferences which came about in the context of wage controls during the Second World War. These tax policies have distorted the healthcare market, linking health insurance to employers in a way which makes healthcare arbitrarily more expensive for the unemployed, students and those who are self-employed.”

As a matter of cost reduction, I believe Congress could have better achieved its ends by reforming the tax code to address these problems and allowing the purchase of health care insurance, like many other insurance products, across state lines, allowing for greater customer choice, more efficient distribution of healthcare services, and broader risk pools for those with preexisting conditions.”

So, which Justice got it right?

“I don’t pretend to be familiar with the law relating to the tax/penalty distinction, although I tend to agree with the Roberts opinion and Thomas, Scalia, et al. on the limitations the decision places on the Commerce Clause, the Necessary and Proper Clause and the Federal government’s conditional spending power vis-à-vis the States.

Parting thoughts?

“I wholeheartedly agree with the ACA’s goal of ensuring coverage for pre-existing conditions and coverage for those who are economically disadvantaged. However, I think that lowering costs as described above in connection with a tax refund or voucher-based system would lead to a cleaner, more progressive redistribution of health care resources without the market inefficiencies and cross-subsidies associated with a mandate and regulated approach.”

VERONICA JACKSON, 2014

Veronica is the Co-Chair of the Health Law and Policy Association (HLPA) and the Chair of Girls on the Run BLS pro-bono (GOTR). HLPA is a student-run organization that brings together students interested in a variety of Health Law fields to discuss today’s health care issues and to unite students and health law professionals with similar interests. GOTR is a new pro-bono program at BLS, bringing positive role models to an underserved elementary school in New York City. BLS coaches help to teach life skills through dynamic, conversation-based lessons and running games.

Overall I’m extremely pleased with the outcome of this case…My biggest hesitation with the law is how comprehensive the lowest ranked plans offered in Exchanges will be, and if they will actually lead to an increase in primary care services.

How does this decision affect you?

“I currently have health insurance, but will be losing it when I turn 26 in March and will likely enroll in the BLS offered plan.

Personally, this decision does not have that much of an impact on me. My parent’s health insurance has allowed young adults (up to age 26) to stay on their plan for years, so a negative outcome would not have had an effect on me as of yet. I also cannot foresee myself ever choosing not to have health insurance so the mandate would not really be mandating me to do anything I did not want to do anyways. I am concerned that the plans that I may be able to afford after law school will not be comprehensive enough, but the New York Exchange has yet to release all of its guidelines.”

Which Justice got it right?

“I agree most with Justice Ginsburg’s opinion in that the ACA would have been constitutional under the Commerce Clause. I agree with the Administration’s position that health care is a very unique market in that virtually everyone will enter it at some point in their lifetime. Because of this, I feel that Congress did have the power to enact this law under the Commerce Clause. One of my favorite quotes in her opinion sums it up nicely: ‘Why should the Chief Justice strive so mightily to hem in Congress’ capacity to meet the new problems arising constantly in our ever developing modern economy? I find no satisfying response to that question in his opinion.’”

Parting thoughts?

“Overall I’m extremely pleased with the outcome of this case. I’m a proponent of a single-payer system or a two-tiered system (such as in Germany), but in the interest of being realistic, I know that neither system is in our immediate future. So for now, I support the ACA. Decreasing emergency room use and increasing preventative care are crucial to decreasing our nation’s healthcare costs, and these two goals are made possible in the ACA by giving more Americans access to health insurance.

My biggest hesitation with the law is how comprehensive the lowest ranked plans offered in Exchanges will be, and if they will actually lead to an increase in primary care services. In order to avoid the penalty, many Americans may enroll in plans that still make health care too costly to obtain. This would cause those enrollees to waste money on their premiums each month while still not to receiving health care. The standards will be set by various exchanges, but if Massachusetts is any indication, a new class of “under-insured” may emerge. I am also concerned with how the insurance market could play out 10-15 years from now. There is often very little oversight for these private health plans, and they could become very powerful in years to come. As an intern at the Medicare Rights Center, I have been able to see first-hand how the policy set by regulation committees can often have little to no effect in the implementation and regulating of a plans day-to-day operations and services. Suggestions to committees are for one reason or another often ignored or glossed over when passed onto plans, giving plans too much power and not enough supervision. Hopefully stronger guidance would be built into this system.”

*Editor’s note: We hope you join the discussion but please keep your comments respectful.

After Two Promising Candidates Walk Away, Committee Resumes Search for New Dean

The office of Interim Dean Michael Gerber (Photo by David A. Shapiro)

Despite the ongoing efforts of Brooklyn Law School’s dean search committee, the 2011-12 school year opened without a full-time dean.

Former Dean Joan Wexler’s decision to step out of the position last calendar year left the school with a void in the leading administrative position.  With Wexler now serving as President, Professor Michael Gerber has filled in as interim dean, while a committee made up of faculty and members of the school’s board of trustees was tasked with finding a suitable candidate to take the reigns.

A series of interviews by the search committee during the Spring 2011 semester yielded two potential dean candidates: Professors Lawrence Mitchell, then from George Washington University Law Center, and Daniel Capra from Fordham Law School. However, both withdrew shortly after meeting with students near the end of the semester, with Mitchell taking a deanship at Case Western Reserve Law School.

While the withdrawals sent the search committee back to square one, they did not sit idle over the break.

“[O]ver the summer, we’ve been preparing a new set of material describing the law school and more fully fleshing out the position description,” said BLS professor and dean search committee member William D. Araiza.

The Dean’s Role and the Search Process

The dean serves as chief academic officer of the law school.  While the governing board is responsible for many final decisions, it is the dean that is chief administrator and chief policymaker.

But BLS is slightly unusual in that it also has a president, despite its independence from any outside university. The school is currently structured so that the president acts essentially as CEO—taking responsibility for the non-academic aspects of the law school’s operations.

“Things like development, or real estate…the conception is the President would be responsible for those things,” said Professor Araiza.

The search committee works by first soliciting interest and locating individuals that members have determined have the qualifications to serve as dean. They periodically work with a search consultant who is experienced in locating leadership candidates for non-profit openings. After a preliminary vetting process, the committee seeks to ascertain whether any of the candidates are suitably qualified to be finalists.  Those who are come to the school for a day to meet with students and faculty members, as Professors Capra and Lawrence Mitchell did in the spring.

Students have remained a strong presence throughout the search process at BLS thus far, according to search committee member Professor Claire Kelly.

“As faculty members we feel that our students are one of the best selling points of our school,” Professor Kelly said. “We have excellent students who make this an extremely exciting community.   We have been delighted, although not surprised, by the strong student turnout at the candidate presentations thus far.”

Professor Edward Janger, also a committee member, echoed those sentiments, and reiterated the importance of the student body in the process.

“Both [candidates] were extremely complimentary about the students,” he said, “and we found the student feedback extremely useful.”

At the same time, both Capra and Mitchell removed themselves as candidates in a way that surprised many students.

“I think it was surprising that both candidates dropped out within a relatively similar period of time,” said Lindsey Zahn, ’12. “I don’t think it was unexpected for one candidate to renege on his candidacy, but it certainly was surprising, if not strange, for both candidates to drop out.”

Mitchell stated in an email that the “timing had nothing to do with the students nor the faculty for that matter. I did, however, make up my mind within a matter of a relatively few days.”

Professor Araiza said he was not necessarily surprised, but that he was “still disappointed.”

When talking with students at a question and answer session, Dean Mitchell spoke quite highly of New York, yet he found himself in Cleveland.  Indeed, he even speaks of his love for New York on his welcome letter on the Case Western Reserve Law School website.

In an email, Mitchell said: “I have always wanted to return to New York, and have always had both admiration for and warm feelings toward BLS.  In the end, I decided that the opportunity to work within a great research university with a first-rate central administration would give me the best chance to learn and grow as an academic leader.”

Could the search committee institute changes to the process? Mitchell said he “would have preferred that it begin at least several weeks earlier.  By the time I had my callback at BLS I was already feeling some pressure to make decisions in order to be fair to schools that had moved faster.”

Professor Capra also recognized the natural problems at any law school and the complexities of the selection process. “The Deanship process in any school is problematic,” he acknowledged, “because there are so many constituencies that it is hard if not impossible to keep everyone on the same page.

“So it is possible to end up either with A) a candidate who tells everyone what they want to hear, just to get the job, or B) a candidate who says what they think and then is opposed by one constituency or other. This is not a comment particularly directed to Brooklyn. It is a comment about the challenges of any law school dean search.”

Simultaneous Searches

BLS is not the only law school currently looking for a new dean.  Baltimore Law School is also in the hunt, after its former dean resigned, bemoaning the school’s lack of transparency and financial abuse at the hands of its parent university.  Albany Law, too, seeks a new Dean, after its former dean officially resigned at the end of his contract this past June. And according to the law blog The Faculty Lounge, other law schools continuing dean searches into this academic year include Washington & Lee, University of Wisconsin, Saint Louis University, Texas Tech, and Stetson University Law School. One might surmise that searches in Florida, Texas or Wisconsin would have no bearing on Brooklyn’s search, but given Dean Mitchell’s decision to choose Case Western in Ohio over a hometown institution, it is clear that the competition is nationwide.

Case Western’s struggle to find a dean was pointed and traumatic. Several alumni started up the website Case Against Smith to protest the potential choice of a conservative nominee for the deanship.  Mitchell’s decision to take the reigns of CWR was such a relief that the website now features only a clip of the popular 1969 hit “Na Na Hey Hey Kiss Him Goodbye,” with the written message, “Academic leadership is no place for activists with a political agenda.”

While activism in the dean search may not be rampant at BLS, students do want to be more involved.

Sarah DeStefano, ’12, noted that her undergraduate university searched for a dean while she was there and suggested, as was the case at her undergraduate institution, that a student be involved on the search committee — someone who, even if they have “no real power to choose…could voice their opinions to the other committee members.”

Last year, Professor Araiza served as a liaison between the student body and the committee, providing information on the candidates and when they would be visiting the school. A website set up on BLS Connect still features the Mitchell and Capra discussions but has not been updated since the Spring 2011 semester.

Regardless of all the complications, or whether the student body is represented in the search, Professor Araiza now makes it clear: “We are going to have a new Dean. It’s just a matter of when.”

Students Hone Skills in the Public Interest with Restored Summer Grants in Tow

'Divergent Viewpoints' by Shaina Rubin

In the middle of a steamy New Orleans summer, Brooklyn Law School student Dwayne Thomas, ’13, traveled Big Easy streets on a mission. He needed to track down a set of court documents that might prove one unfortunate Louisiana inmate not guilty.

“My first thought coming into law school was to get people out [of jail] who were wrongfully convicted,” said Thomas. His sleuthing brought him to a local courthouse, where he finally obtained a set of old documents that may turn the case around.

When he decided to go to law school, Thomas didn’t know for sure whether he wanted to go into public interest law. But having grown up in the projects of Jamaica, Queens, he knew that an education in law could equip him with the tools needed to help reverse the high incarceration rate his friends faced growing up. That thought led him to the Innocence Project New Orleans, a non-profit that works to exonerate wrongfully convicted prisoners in the deep South.

This summer, Thomas was one of more than 450 students who participated in the BLS Public Service Grant program, which for the past decade has provided students with a stipend of up to $5000 for summer work in the public sector — either in government, with a judge’s chambers, or at a not-for-profit organization.

Florence Attino, Associate Director of Financial Aid, likened the program to a “mini corporation” due to the sheer number of students enrolled, and all the paperwork it entails. The program has doubled in size in the past six years, she said, due in large part to the drying up of private sector jobs.

“I don’t see it slowing down,” she said.

Michael Shearman, ’13, spent his summer working at the Securities Exchange Commission in Washington, DC, with the aid of a Public Service Grant. At the SEC, Shearman worked on international bribery cases as part of the agency’s Foreign Corrupt Practices Act team. He’s also played a part in the investigation into the Rupert Murdoch-News of the World phone hacking scandal, as well as delving into other high profile projects.

“It was a huge factor,” Shearman said of the grant’s impact on his decision to work at the SEC.

Two other BLS students, Jared Steller and Neerav Shah, were also SEC interns this summer–no secret, since they were featured in the New York Times Dealbook blog in August, speaking about their internships. In mentioning his stipend to the Times, Shah noted that “[l]aw schools are making a real push to support public service.”

But many schools do not actually provide their students with the same level of public interest funding as BLS. Attino noted that the program is unique to BLS because, as a stand-alone law school, the institution does not have to share its federal funding with unrelated graduate and undergraduate programs, as others do.

And BLS students do not take the program for granted – especially those who had already lined up summer work in reliance on the grant when they received an emailed memo on March 1st, indicating that their summer’s public interest funding would be capped at $3000 instead of $5000 for the summer.

The grants are funded in part by federal work-study money, and the school has customarily matched those funds to reach the $5000 per student cap. According to the March 1 memo, the cut resulted from a decrease in federal funding.

Kristie LaSalle, ‘12, a member of the newly founded BLS Alliance for Transparency and Accountability (ATA), helped form the BLS ATA with several other like-minded students shortly after the announcement of the public service grant reduction. According to a statement LaSalle issued to the Advocate on behalf of the group, “[s]tudents met, town-hall style, mere days after the announcement of the funding cuts.”

The ATA explained that this “student outcry” over the funding cuts “arose not only out of concern for students’ own ability to afford the cost of living over the summer, but also out of a recognition that the decision reflected a marked departure from the school’s prior commitment to public interest and public service, a cornerstone of the school’s mission and a devotion for which it has gained much respect in the broader legal community.”

Fortunately for 2011 grant recipients, the school decided to restore funding to its original level, but Interim Dean Michael Gerber made it clear that next summer’s public interest job seekers will likely feel the impact. In an email to the BLS community announcing that grants would be restored to the original level, he wrote:

“This decision…does not come without cost. We will maintain the grant amount by using our entire FY 2012 federal work-study grant in the summer of 2011, as well as expending substantial additional Brooklyn Law School funds.

“While we will tirelessly continue to pursue other sources of funding for 2012, it is likely that reductions in federal support will continue. As a result, it is difficult to predict what the structure of the program for summer 2012 will be, although it is certain to be substantially restructured and grants will almost certainly be reduced.”

According to the new BLS development director, Jean Smith, the school has not yet found a donor to endow the public service grant program.

However, “whenever we reach out to people for fundraising purposes our primary push is financial support for our students,” Smith said by email.

For those still concerned about the issue of transparency within the BLS administration, LaSalle says that the BLS ATA plans to act as a liaison between students and the administration, “not only for the public service grant issue, but for many issues that deeply impact students’ lives and experiences at BLS.”

Betsy Kane, director of public service programs, suggests that students prepare for the upcoming summer by seeking other sources of funding for public interest work, including the Sparer or BLSPI fellowships, and non-BLS affiliated grants such as the Equal Justice Works stipend, the Charles H. Revson Law Students Public Interest Fellowship, or the Peggy Browning labor grant.

Both Thomas and Shearman admitted that they may not continue public interest work for their entire legal careers, but they are grateful for the opportunities they had this summer.

“Before you go to law school you have no idea what being a lawyer is like,” said Thomas. “[Now] I have a better idea of what I want to do when I get out.”

Student Leaders Sound Off: Just Say “Cage-Free, Please”