June 29, 2012
The U.S. Supreme Court issued its ruling on the 2010 national health care overhaul on Thursday, June 28, 2012, largely allowing the Patient Protection and Affordable Care Act (ACA) to stand.
A number of HLS faculty members offered media analysis of the Court’s ruling in the days following the ruling. See some excerpts and links below:
Chief Justice Roberts comes into his own and saves the Court while preventing a constitutional debacle
By HLS Professor Laurence Tribe ’66
Today, Chief Justice John Roberts delivered a heroic rebuke to the growing number of Americans who feared the Supreme Court had lost the ability to rise above the narrowminded partisanship that dominates the country’s political discourse. More importantly, he and Justices Ginsburg, Breyer, Sotomayor and Kagan ensured that no contrived constitutional obstacle will stand in the way of millions of uninsured Americans who will finally gain health coverage under the Affordable Care Act. And all Americans will now benefit from implementation of the law’s historic and desperately needed steps to bend the curve of our nation’s skyrocketing health care costs. Read more
Charlie Rose (video)
HLS Professor Laurence Tribe ’66
A discussion about the Supreme Court decision to uphold healthcare law with Laurence Tribe of Harvard Law School. Watch video
CBS This Morning (video)
HLS Professor Laurence Tribe ’66
One of the biggest shocks in the Supreme Court's decision on health care is that Bush-appointed Chief Justice Roberts sided with the liberal justices in upholding the law. Erica Hill and Jeff Glor asked Harvard Law Professor Laurence Tribe why Roberts voted that way. Tribe taught both Roberts and President Obama.
The New Republic
By HLS Professor Einer Elhauge ’86
Today’s Supreme Court decision isn’t just a victory for Obama and his health plan: It’s a triumph of substance over formalism. The challengers’ argument all along rested on a curious claim that linguistics should trump reality. They treated the mandate as a fundamental change in Congressional power, but conceded that precisely the same financial effects could have been imposed if the mandate had been called a tax. Likewise, for all their alarm about a broccoli mandate, their argument implied that Congress could impose it if it just called it a broccoli tax.
As a result, the challenger argument was never really about the scope of Congressional power, which would not have been changed even if they had won, but just about the words Congress must use to exercise it. It was just a one-off argument that would enable them to strike down Obamacare because, they argued, it used the wrong wording. Read more
WNYC Radio’s The Takeaway interviews HLS Assistant Professor I. Glenn Cohen ’03
It’s one of the most highly anticipated Supreme Court decisions of the decade — and certainly one of the most talked about in history — the Affordable Care Act. After much deliberation, the Supreme Court decided today to uphold of the healthcare law, which president Obama signed in 2010.
Interpreting the court’s decision is Glenn Cohen, who’s written about the case for the New England Journal of Medicine. Mr. Cohen is the co-director of Harvard Law School’s Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics. Listen to the broadcast
The New York Times
HLS Professors Charles Fried and Laurence Tribe '66
... Despite the statute’s survival, the significance of the ruling for the commerce clause wasn’t lost on constitutional scholars from across the political spectrum. “It’s a dark day and the opinion is very dispiriting,” Charles Fried, a Harvard constitutional law professor, told me from Rome, where he was on vacation.
“The limitation of the commerce clause runs counter to 75 years of Supreme Court jurisprudence. It is a complete capitulation to the bogus logic of the broccoli argument and its proponents in the Tea Party.”
Professor Fried, a solicitor general under President Ronald Reagan, is viewed as a conservative and no fan of the heath care law, but nonetheless has consistently argued that the law is constitutional.
While praising the outcome, Professor Fried’s more liberal Harvard colleague Laurence H. Tribe said: “There may be a dark gray lining: it is the court’s 5 to 4 narrowing of the federal commerce power. Ironically, that narrowing might be the longest-lasting doctrinal legacy” of the ruling. ... Read more
The Boston Herald
HLS Professors Einer Elhauge ’86, Richard Lazarus ’79, and Laurence Tribe ’66:
Conservative Chief Justice John Roberts not only saved Obamacare with his blockbuster opinion upholding the president’s sweeping health care law, he may have saved the Supreme Court’s rep, according to experts and former colleagues, who said the Harvard grad has never let politics tint his rise into the country’s top judge.
“It’s enormously gratifying that the chief justice, who once was one of my star students in constitutional law, saved the day — and perhaps the court,” said Harvard professor and constitutional law expert Laurence H. Tribe, who said the court’s “place as a legal institution had begun to fall into dangerous disrepute.”
Harvard professor Einer R. Elhauge said it was no coincidence Roberts was the swing vote, calling him “the most economically sophisticated one out of the conservative justices.”
Richard J. Lazarus, a Harvard Law professor, called his former Crimson classmate’s opinion “striking.”
“His willingness here to take a leadership role and to take on both sides of the court and steer his own path is very much in keeping with his view of the role of the chief justice,” he said. Read more
The Daily Beast
By HLS Professor Laurence Tribe ’66
As the Senate was considering his nomination to become this nation's 17th chief justice, John Roberts—once a star pupil in my constitutional law class—famously compared the role of a judge with that of an umpire, just calling the balls and strikes. In many respects, that analogy is a deeply flawed one. Constitutional rules are not black and white; there are many shades of grey in between, and it’s up to our highest court both to define the strike zone and to interpret the rules themselves. It is simply unrealistic to say that judges can decide every case by mechanically applying a rigid algorithm. If they could, we wouldn’t need nine justices on our highest court and could probably program computers to do their work. Read more
The Daily Beast
HLS Assistant Professor I. Glenn Cohen ’03:
"This is a big win for the Obama administration. They would have preferred to have the Act to be upheld as an exercise of the Commerce Clause or Necessary and Proper Clause Congressional power rather than the Taxing Power, because that would have avoided arming the Romney campaign to say things like, "the President said it wasn't a tax, but he lied to you as the Supreme Court realized," and, "in the middle of this terrible economy, rather than focusing on jobs, the President pressed upon people a health care tax." Still, even that political reality is much better for them than having the mandate or other parts of the bill struck down.
“On the Medicaid expansion issue, the Court upheld it with a caveat. In my view, this small cut back on the President's power will not prove that consequential. The terms that Congress offered states to expand their Medicaid in the short term are good enough that most states will do so. A few states may have Republican governors who for political reasons will want to resist (to claim they are not being pushed around by the federal government, not squandering tax dollars, not socialists), and now they can do so without the threat of losing all Medicaid funding. Still, all in all, the President and his lawyers had a very good day."
HLS Professor Einer Elhauge ’86:
“The Supreme Court decision upholding Obamacare as a tax is a triumph of substance over formalism. A major flaw in the challengers’ position all along was that, even if you bought their argument, Congress could impose precisely a mandate with precisely the same financial effects if it called the mandate a tax. It could also impose a broccoli mandate if it called it a broccoli tax. The challenger argument hinged on the claim that this functional identity did not matter because it was called a mandate rather than a tax. The court held—I think quite sensibly—that the issue turned on substance rather than linguistics.
The implications for Obama’s reelection campaign are positive but mixed. The fact that the court upheld Obamacare will help because it undermines the Republican claim that it is unconstitutional and moots the argument, which they were hoping to make, that Obama had erred by spending so much time on something that ended up having no effect. It also gives him a significant accomplishment to campaign on. On the other hand, the way the Court ruled gave the Republicans the talking point that Obamacare imposed a new tax.”
The Wall Street Journal: WSJ Blogs
HLS Professor Laurence Tribe ’66:
I’ve been surprised at how few people seem to have noticed, but Chief Justice Roberts signaled on the very first day of oral argument this March that he was inclined to view this mandate as merely a tax, a suggestion I had also expressed in a Boston Globe editorial on April 3, 2011, when I argued “this law doesn’t literally force anybody to do anything; it just increases the tax liability of those who refuse to buy insurance.” In questioning one of the advocates opposing the Affordable Care Act, the Chief Justice mused: “You know, buy insurance or else. Or else what? Or else nothing” — except a possible increase (and a modest one at that) in your taxes. It’s enormously gratifying that the Chief Justice, who once was one of my star students in constitutional law and whose views count while of course mine don’t, saved the day — and perhaps the Court, whose place as a legal institution had begun to fall into dangerous disrepute. Most gratifying of all is the way millions of otherwise uninsured and uninsurable Americans will now learn in real time how much this landmark piece of legislation will do to protect us all, for reasons that the President of the United States explained with admirable clarity and brevity just moments ago on national television. But of course the Chief Justice also joined a 5-4 majority to read the Commerce Clause quite narrowly and to put limits on the ability of Congress to use the spending power to bend the states to the nation’s will, so the long-term impact of today’s decision will depend more on the future composition of the Court than it does on any prognostication that constitutional experts are qualified to offer. Read more