Thursday, June 28, 2012

Reaction: Supreme Court Rules on Health Care Law

The U.S. Supreme Court on June 28 issued a landmark ruling on the constitutionality of the Affordable Care Act, which includes a mandate requiring that all Americans purchase health insurance or pay a penalty. The Court voted to essentially uphold the law, though the analysis of the details continues. You may read the full opinion here.

Yale Law School faculty members and lecturers are offering comments and opinions about the decision in various media outlets. See below for some of the latest postings.

Akhil Amar '84, Sterling Professor of Law

Analysis: Legal eagles redefine healthcare winners, losers
By Drew Singer and Terry Baynes, Reuters, July 3, 2012
It is fairly unusual for a ruling to have a delayed dramatic effect. The best example that Yale Law School professor Akhil Reed Amar could come up with was Marbury v. Madison in 1803. In that ruling, the high court established the concept of judicial review - the practice that allows courts to uphold or invalidate legislative and executive action - but it took 60 years for the court to ever use that power, said Amar.

Jack Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School

For Pincus, tax issue was always at the center of health care case
by Tony Mauro, The National Law Journal, July 2, 2012
Pincus: My clients and co-authors, Gillian Metzger and Trevor Morrison — both professors at Columbia Law School — had the idea
for the brief (together with Jack Balkin of Yale Law School) and were looking for an appellate practitioner to partner with. They
reached out, and it seemed to me an interesting issue that wasn't getting much attention at all in the initial debates about the law's
constitutionality. We filed our amicus brief in just about all of the cases in the lower courts as well as in the Supreme Court.

Akhil Amar '84, Sterling Professor of Law

Roberts reaches for greatness; With the healthcare law ruling, the chief justice claimed the current court as his own
by Vikram David Amar,Akhil Reed Amar, Los Angeles Times, July 1, 2012
In writing Thursday's landmark ruling upholding the key aspects of President Obama's healthcare law, while at the same time cutting back on established understandings of federal power, Chief Justice John G. Roberts Jr. claimed the current Supreme Court as his own, and began to build for himself a legacy of greatness.

Akhil Amar '84, Sterling Professor of Law

How health care reform was upheld
Up With Chris Hayes, MSNBC, June 30, 2012
Guests: Yvette Clarke, Akhil Amar, Avik Roy, Don Berwick, Katherine Eban, Randy Barnett
A pro tax provision in the 16th amendment when the Supreme Court had actuallytried to say there isn`t broad federal tax power. We know Abraham Lincoln thought there was. The five conservative justices said, no, you can`t have progressive income taxes. And we the people who rose up, the 99 percent, and said, yes, we can.

Jack Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School

The Court Affirms Our Social Contract
By Jack Balkin,, June 29, 2012
Whenever the federal government expands its capabilities, it changes the nature of the social compact. Sometimes the changes are small, but sometimes, as in the New Deal or the civil rights era, the changes are big. And when the changes are big, courts are called on to legitimate the changes and ensure that they are consistent with our ancient Constitution. In this way, courts ratify significant revisions to the American social contract.
Bruce Ackerman ’67, Sterling Professor of Law and Political Science

Roberts Raises the Election Year Stakes
By Bruce Ackerman '67, Huffington Post, June 29, 2012
Beyond his remarkable personal victory, Roberts' balancing act has also served the nation. It has preserved the Court's legitimacy as America confronts the crises that are sure to arise in the coming decades.

Jack Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School

Health Ruling Vindicates Verrilli After Arguments Mocked
By William McQuillen,, June 29, 2012
Verrilli was well prepared and should not be criticized for presentation, according to Jack Balkin, a law professor at Yale University. “People tend to approach these arguments like it is Dancing with the Stars,” he said.

Stephen L. Carter ’79, William Nelson Cromwell Professor of Law

The Supreme Court’s Most Impressive Achievement
By Stephen L. Carter,, June 28, 2012
The most fascinating aspect of the Supreme Court’s anticlimactic decision to uphold the Affordable Care Act isn’t the outcome. It’s that until the ruling was handed down, nobody outside the court knew what the outcome was going to be.

Jack Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School 

Did Chief Justice Roberts Take a Cue From Two Centuries Ago?
By Chris Geidner, The Daily Beast, June 28, 2012
“It will have almost no effect on legislation moving forward, because the opinion makes clear that what you can't do through the Commerce Clause, you can do through the General Welfare Clause,” Jack Balkin, a professor at Yale Law School, told The Daily Beast.

John Fabian Witt ’99, Allen H. Duffy Class of 1960 Professor of Law

The Secret History of the Chief Justice’s Obamacare Decision
By John Fabian Witt, Balkinization, June 29, 2012
A Democratic Party president’s signature legislative victory is imperiled by an aging Supreme Court stocked by Republican appointees. 

Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment 

Tax power: The little argument that could
By Jack M. Balkin,, June 29, 2012
Throughout the two-year litigation over the Affordable Care Act, there was one argument that health care reform's opponents dreaded the most. It was the argument that the so-called individual mandate was not a mandate at all, but a tax.

Bruce Ackerman ’67, Sterling Professor of Law and Political Science 

Roberts Raises the Election Year Stakes
By Bruce Ackerman, Huffington Post, June 29, 2012
John Roberts’ decision on health care places the country at a constitutional crossroads. On the one hand, his majority opinion upholds the greatest expansion of the welfare state since the 1960s.

Jack Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School 

Supreme Court Year in Review; Entry 18: That boring old tax argument was always a winner
By Jack Balkin,, June 28, 2012
Dear Emily, Dahlia, Walter, and Judge Posner: Even before the ACA was passed in March of 2010, I had been arguing to anyone who would listen that the simplest way to justify the individual mandate was as a tax under the General Welfare Clause. 
Linda Greenhouse ’78 MSL, Joseph Goldstein Lecturer in Law

A Justice in Chief
By Linda Greenhouse ’78 MSL,, June 28, 2012
The title “chief justice of the United States” is not in the Constitution, and neither was it in the first Judiciary Act by which Congress organized the federal courts.

Akhil Amar '84, Sterling Professor of Law

The political genius of John Roberts
By Ezra Klein, The Washington Post, June 28, 2012
“The decision today is being reported as 5-4, with Roberts voting with the liberals. Akhil Reed Amar, a constitutional scholar at Yale Law, sees it differently. “The decision was 4-1-4,” he said.”

William Eskridge, Jr. '78, John A. Garver Professor of Jurisprudence

Inside the Obamacare Ruling: How Roberts Got A Majority
By Daniel Fisher, Forbes, June 28, 2012
“The Obamacare ruling is “totally Marshallian –it’s quite ingenius,” said William Eskridge, a constitutional law expert at Yale Law School whose students have included Sotomayor (I also studied under him as a Knight Fellow a few years ago). “The Chief Justice has written an opinion which none of the briefs anticipated.”


Read past commentaries from Yale Law School faculty addressing the relevant issues in the ruling:

The Health-Care Mandate Is Clearly a Tax—and Therefore Constitutional
by Jack Balkin, The Atlantic, May 4, 2012

“Throughout the constitutional debate over the Affordable Care Act, most observers have assumed that the key question would be whether the individual mandate is a proper exercise of Congress's powers to regulate interstate commerce. But there has always been a second argument, largely neglected -- Congress has the power to pass the individual mandate as a tax. And that argument offers an easy way to uphold the Affordable Care Act without delving into the metaphysics of broccoli.
"In fact, the individual mandate is a tax. The mandate is an amendment to the Internal Revenue Code, and it is calculated based on a percentage of adjusted gross income or a fixed amount, whichever is larger. Starting in 2014, it will be collected on your form 1040 just like your other taxes.”

Rejecting Affordable Care Act Is Rejecting Constitution
by Todd Brewster and Akhil Amar ’84, Huffington Post, March 20, 2012

“Had the bill explicitly used the word "tax" instead of "penalty," the fatal flaw of the constitutional challenge would be obvious to all. The Constitution undeniably gives Congress sweeping power to tax. And if Congress can tax a person, and then use that tax money to buy a health-care package for that person's benefit, why can't it simply direct the person to procure the package himself, or else pay a higher tax?”

A Tax Like Any Other
by Jack Balkin, New York Times Room for Debate, March 28, 2010

“The individual mandate, which amends the Internal Revenue Code, is not actually a mandate at all. It is a tax. It gives people a choice: they can buy health insurance or they can pay a tax roughly equal to the cost of health insurance, which is used to subsidize the government’s health care program and families who wish to purchase health insurance.”