June 28, 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.
Asked for his reaction following the announcement Thursday morning, Harvard Law School Professor Einer Elhauge ’86 said:
“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.”
Clinical Professor Robert Greenwald, director of the Harvard Law School’s Center for Health Law and Policy Innovation, offered recent findings on how state health reforms similar to those in the ACA have benefitted the people of Massachusetts. He said:
“Here in Massachusetts, we have demonstrated that health reforms result in increased access to needed care and treatment for our most vulnerable residents, including individuals with HIV and other chronic illnesses. Today’s ruling will expand access to care for millions of Americans. However, we [at Harvard Law School's Center for Health Law and Policy Innovation] are concerned that the Court’s decision that the federal government may not withhold all Medicaid funding for states who choose not to participate in Medicaid expansion will perpetuate unequal access to care and health disparities. It is critical that low-income Americans be able to reap the benefits of health reform. In terms of putting the ACA into action, the devil is in the details. We must continue to advocate to make sure that our federal and state governments implement the ACA in ways that turn the law’s potential for increased access to care into reality.”
Greenwald, the Center’s staff and HLS students also shared their reactions to the ruling with the Boston Globe.
A number of HLS faculty members also have offered analysis of the Court’s ruling to the media, examples of which are available below:
By HLS Professor Noah Feldman
If the U.S. Supreme Court had wanted to make history, it could have: Striking down the individual mandate in the health-care law would have been the most weighty Supreme Court ruling since Franklin Roosevelt’s first New Deal was ruled unconstitutional three-quarters of a century ago.
By upholding the individual mandate – after honestly acknowledging that making people buy insurance is a tax – the court chose the more cautious course.
In the spirit of Justices Oliver Wendell Holmes and Felix Frankfurter, the court adopted the strategy of judicial restraint. The man most responsible for this comes as a surprise: Chief Justice John Roberts, a tried and tested conservative appointed by George W. Bush to the near-universal plaudits of the right. Roberts said in his confirmation hearings that he believed in judicial restraint. That has become a cliché, repeated by every would-be judge raising a right hand before a Senate committee. When the chips were down, Roberts did exactly what he had sworn to do under oath. He stayed the court’s hand and rejected activism.
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 to 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.
In one respect, however, the analogy is a sound one. Umpires should not care who wins: the home team or the visitors. So too, judges should not care who wins: Republicans or Democrats.
TheRoot.com interviews HLS Assistant Professor I. Glenn Cohen ’03: Glenn Cohen, professor of law and co-director of the Center for Health Law Policy, Biotechnology and Bioethics at Harvard University, reasoned that, even if the court's specific rationale was not ideal for the Obama administration, it's still a victory for him.
"The best possible thing would have been for it to have been upheld as an exercise of the Commerce Clause power because now Mitt Romney gets to say, 'Look at the president increasing taxes -- he didn't want to call it a tax before, but the Supreme Court called it as it was,'" Cohen told The Root. "But at the end of the day, this is a very good day for the president."
HLS Lecturer on Law and SCOTUSBlog editor Thomas Goldstein discusses the Court ruling.
HLS Professor Laurence Tribe ’66:
Although it’s surprising how few people seem to have noticed, Chief Justice Roberts signaled on the very first day of oral argument this March that he saw this mandate as merely a tax, a view I had also expressed in my 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.” It’s enormously gratifying that the Chief Justice, whose views count while of course mine don’t, saved the day – and perhaps the Court. But 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.