Return Economic Substantive Due Process Rights: A Challenge to the Individual Mandate Using the Commerce Clause

2012 ◽  
Author(s):  
Nicholas A. Primrose
Keyword(s):  
Due Process ◽  
Commerce Clause ◽  
Individual Mandate ◽  
Substantive Due Process ◽  
The Individual ◽  
Due Process Rights

Constitutional Limitations

2018 ◽  
Author(s):  
Scott Burris ◽  
Micah L. Berman ◽  
Matthew Penn, and ◽  
Tara Ramanathan Holiday
Keyword(s):  
Public Health ◽  
Supreme Court ◽  
Due Process ◽  
Reproductive Rights ◽  
Court Cases ◽  
Health It ◽  
State Action ◽  
Substantive Due Process ◽  
State Action Doctrine ◽  
Due Process Rights

This chapter describes “due process,” a Constitutional restriction on governmental actions that impact individuals, in the context of public health. It outlines the doctrines of procedural and substantive due process, including the legal tests that courts apply to decide whether individuals’ due process rights have been violated. It uses examples from Supreme Court cases that have defined due process in the context of public health, including those that struggle to define the scope of reproductive rights. It also examines two cases where public health principles were raised as a justification for governmental action: one about involuntary sterilization and one about Ebola. The chapter concludes with a brief discussion of the “state action doctrine” that defines which public health actors may be challenged on due process grounds.

The Individual Mandate as Healthcare Regulation: What the Obama Administration Should Have Said in NFIB v. Sebelius

2013 ◽  
Vol 39 (4) ◽  
pp. 539-572
Author(s):  
Abigail R. Moncrieff
Keyword(s):  
Health Insurance ◽  
Market Failures ◽  
Consumption Decisions ◽  
Commerce Clause ◽  
Healthcare Regulation ◽  
Comprehensive Health ◽  
Individual Mandate ◽  
Individual Decisions ◽  
The Individual

There was an argument that the Obama Administration's lawyers could have made—but didn't—in defending Obamacare's individual mandate against constitutional attack. That argument would have highlighted the role of comprehensive health insurance in steering individuals' healthcare savings and consumption decisions. Because consumer-directed healthcare, which reaches its apex when individuals self-insure, suffers from several known market failures and because comprehensive health insurance policies play an unusually aggressive regulatory role in attempting to correct those failures, the individual mandate could be seen as an attempt to eliminate inefficiencies in the healthcare market that arise from individual decisions to self-insure. This argument would done a better job than the Obama Administration's of aligning the individual mandate with existing Commerce Clause and Necessary and Proper Clause precedent, and it would have done a better job of addressing the conservative Justices' primary concerns with upholding the mandate. This Article lays out this forgone defense of the individual mandate.

Religious Exemptions to the PPACA's Health Insurance Mandate

2011 ◽  
Vol 37 (4) ◽  
pp. 624-651 ◽  
Author(s):  
Samuel T. Grover
Keyword(s):  
Health Insurance ◽  
Focal Point ◽  
Circuit Court ◽  
Patient Protection ◽  
Commerce Clause ◽  
Legal Challenges ◽  
Individual Mandate ◽  
Insurance Mandate ◽  
The Individual ◽  
Circuit Courts

Arguably the most controversial change to the U.S. healthcare system written into the Patient Protection and Affordable Care Act (“PPACA” or the “Act”) is what has been colorfully termed the Act’s “individual mandate,” the provision that establishes tax penalties for those who do not maintain health insurance in 2014 and beyond. Though the health insurance mandate does not go into effect until 2014, it has already faced numerous constitutional challenges in district and circuit courts, with entirely inconsistent results. Conflicting decisions regarding the Act’s constitutionality at the circuit court level cry out for Supreme Court review. But while the individual mandate’s validity under either the Commerce Clause or Congress’s taxing power has been the focal point of litigation thus far, another aspect of the individual mandate may undermine the goal of establishing universal, affordable healthcare coverage for all Americans. As currently written, the religious conscience exemption from the PPACA’s individual mandate threatens the efficacy of the Act and potentially exposes it to legal challenges under the Constitution’s Religion Clauses.

scholarly journals Wrongful Convictions and the State Risk Harm Paradigm

2019 ◽  
Vol 2 (1) ◽  
pp. 23
Author(s):  
Myles Frederick McLellan
Keyword(s):  
Due Process ◽  
Crime Control ◽  
The State ◽  
Risk Society ◽  
Significant Shift ◽  
Wrongful Convictions ◽  
Systemic Factors ◽  
Management Techniques ◽  
The Individual ◽  
Due Process Rights

What has been seen in the last thirty-five years is a significant shift in the psyche of contemporary society. Beck’s theory of “risk society” has captured the concerns of governments and its institutions to focus fears on risks and insecurity. Within the criminal justice context, this has led to the pervasive consciousness that crime has become part of the everyday experience to be controlled by risk management techniques framed within Foucault’s concept of “governmentality.” Crime has become a ubiquitous risk that must be routinely assessed and managed. This shift in criminological thought has also been seen in the move away from the liberal ideals of due process to the favoring of public protection over the rights of individuals found within the normative model of crime control. The problem in this devaluation of due process is the consequent imbalance of power between the individual and the State. Due process rights are enshrined in the Charter to protect against this imbalance and are never more important than when loss of liberty is at stake, most particularly when the errors due to the constriction of these rights contribute to the acknowledged systemic factors that lead to wrongful convictions.

scholarly journals The Taxing Power Of The Federal Government And The General Welfare: What Are The Limits In The Wake Of NFIB V. Sebelius?

2015 ◽  
Vol 76 (3) ◽  
Author(s):  
Mark Klock
Keyword(s):  
Health Insurance ◽  
Affordable Care Act ◽  
Medicaid Expansion ◽  
Federal Funds ◽  
Chief Justice ◽  
Commerce Clause ◽  
General Welfare ◽  
Individual Mandate ◽  
Constitutional Constraints ◽  
The Individual

The Affordable Care Act seeks to remedy the problem of information asymmetry in the health insurance market by mandating that everyone obtain health insurance or pay a penalty, and by requiring the States to expand Medicaid or lose existing federal funds. In NFIB v. Sebelius, Chief Justice Roberts held that Congress’ power to regulate under the Commerce Clause could not justify the Individual Mandate to purchase insurance, but that the penalty could be construed as a tax and upheld under the taxing power. Chief Justice Roberts also held the Medicaid Expansion to be an unconstitutional use of spending power, but determined that the Medicaid Expansion could remain with the States having the option to keep existing funding and not expand or expand and take the incremental funding. Eight Justices disagreed with the Chief Justice on the Individual Mandate, and six Justices disagreed with the Chief Justice on the Medicaid Expansion. This creates a paradox in that a supermajority of the Court believes the case was wrongly decided on both main questions. More distressing is the scant analysis given in all of the opinions to the constitutional constraints on taxes.

scholarly journals Constitutional Ratemaking and the Affordable Care Act: A New Source of Vulnerability

2012 ◽  
Vol 38 (2-3) ◽  
pp. 243-268
Author(s):  
Richard A. Epstein ◽  
Paula M. Stannard
Keyword(s):  
Affordable Care Act ◽  
Medicaid Expansion ◽  
Federal Poverty Level ◽  
Poverty Level ◽  
Patient Protection ◽  
Commerce Clause ◽  
Different Types ◽  
Individual Mandate ◽  
The Government ◽  
The Individual

As this Article is being written, the Patient Protection and Affordable Care Act (ACA) is being besieged with two different types of challenges. The first is a Commerce Clause challenge to the individual mandate on the ground that, although the Commerce Clause allows the government to “regulate” the transactions into which people choose to enter, it does not allow the state to force people to enter into disadvantageous transactions against their own will. The second of these challenges deals with the imposition of the Medicaid expansion provisions requiring a state to forego all of its additional Medicaid support unless it is prepared to extend Medicaid coverage, partially at its own expense, to individuals whose income levels put them at 100% to 133% of the federal poverty level.

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