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Lesson Plan – United States Dept. of Health and Human Services v. Florida (The Health Care Case)

Certiorari granted by the United States Supreme Court on November 14, 2011 Oral arguments scheduled for March 28, 2011


The Parties

Petitioner: The United States Department of Health and Human Services


Florida, other states, and private plaintiffs

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FantasyCast about the facts of the case: FantasyCast about the Commerce Clause and our Constitution:
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The Questions Presented

Does Congress have the power to require that nearly all Americans purchase health insurance as part of a larger regulatory scheme to lower health care costs and expand health care coverage?
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Case Background

In 2010, Congress passed and the President signed the Patient Protection and Affordable Care Act (“the Act”) with the goal of reducing the number of uninsured Americans.  Although the Act has many provisions and uses many mechanisms to expand insurance coverage, the Act’s most important element is an “individual mandate” which requires most Americans purchase a minimum level of health insurance coverage by 2014.  According to Congress, the purpose of the individual mandate was to make sure everyone has insurance, and make sure that taxpayers don’t have to pay for those who can afford to, but choose not to buy insurance. Congress found that uninsured individuals could go to a hospital where they would receive care, the costs of which would then be shifted to already-insured individuals, causing insurance rates to rise.  This is called a “free rider” problem (think of someone who rides a bus without paying; everyone else has to pay for him!).  Additionally, Congress found the mandate necessary to prohibit insurers from denying insurance coverage to individuals with pre-existing health conditions. If someone chose not to buy insurance, he would be required to pay the government money--supporters of the Act call the payment a “tax,” opponents call the payment a “fine.”

At the District Court

Litigation quickly followed the signing of the Act into law, with most legal fire focused on the constitutionality of the individual mandate.  The challenge currently before the Supreme Court was filed in the United States District Court for the Northern District of Florida by the Attorneys General of twenty-six states as well as various private individuals and organizations. The district court held that the mandate was unconstitutional as an exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause.

Opinion of the Court of Appeals

The United States Court of Appeals for the Eleventh Circuit in Atlanta affirmed the district court by holding that the individual mandate exceeded Congress’s enumerated powers.  However, unlike the district court, the appeals court held that the mandate was severable from the rest of the Act--that is, that the rest of the Act could remain law even if the individual mandate was held unconstitutional. Although the complaint which gave rise to this particular case began in a Florida District Court, two District Courts in Virginia, one in Michigan and the District Court for the District of Columbia have all heard challenges to the individual mandate. Similarly, the Eleventh Circuit Court of Appeals heard this case, however, the Fourth, Sixth, and D.C. Circuits have all also heard appeals from those District Court decisions. The Sixth and D.C. Circuits upheld the mandate, while the Fourth Circuit dismissed the case on other grounds. This lesson focuses only on challenges to the individual mandate. However, the Supreme Court also granted certiorari to three additional issues related to the Act: 1) whether pre-2014 challenges to the Act violate the Anti-tax Injunction Act; 2) whether, if the individual mandate is unconstitutional, the mandate can be severed from the Act or whether the entire Act must also be struck down; and 3) whether the Act’s expansion of Medicare unconstitutionally coerces the states. Demonstrating the significance of the issues in this litigation, the Court scheduled a total of five and a half hours for oral argument on all issues--including two hours dedicated solely to the individual mandate--rather than the customary one hour per case.
The Supreme Court granted the writ of certiorari and agreed to hear the case on November 14, 2011. Oral arguments are scheduled for March 28, 2011.
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The Law

The Interstate Commerce Clause United States Constitution, Article 1, Section 8, Clause 3:  “The Congress shall have Power . . . . To regulate Commerce . . . among the several States.” The Necessary and Proper Clause United States Constitution, Article 1, Section 8, Clause 18:  “The Congress shall have Power . . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”
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Relevant Precedents

McCulloch v. Maryland (1819)

McCulloch is widely recognized as one of the greatest opinions of Chief Justice John Marshall and remains the primary case for understanding Congress’s Necessary and Proper power. In 1816, Congress charted the Second Bank of the United States. Although Article I, Section 8 of the Constitution grants Congress 17 enumerated powers, none of those powers includes the authority to charter a bank.  Nonetheless, Chief Justice Marshall upheld the constitutionality of the Bank as an exercise of Congress’s Necessary and Proper power. Marshall rejected a very narrow interpretation of “necessary and proper” and instead interpreted the clause to allow Congress to pass laws that are rationally related to enumerated powers. In one of the most famous holdings in constitutional law, Marshall wrote: “[l]et the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."

Gibbons v. Ogden -(1824)

In this important Commerce Clause case, the Court held that Congress’s power to “regulate Commerce” is a power “complete in itself, [which] may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution.” Gibbons is also important for Chief Justice Marshall’s recognition that, while the Constitution only gives Congress the power to regulate interstate commerce--that is, commercebetween States--”Commerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior.” In other words, Congress may regulate at least some activity that occurs within a state as a part of its regulation of activity between states.

[caption id="attachment_1685" align="alignright" width="199"] Farmer Roscoe Filburn, the respondent in Wickard v. Filburn[/caption]

 Wickard v. Filburn (1942)

The facts of Wickard are simple: farmer Roscoe Filburn violated the New Deal-era Agricultural Adjustment Act of 1938, which limited the amount of wheat Filburn could grow. Filburn planted more wheat than he was allowed to, because he wanted to use the extra wheat to feed himself, his family, and his animals. Filburn argued that because the extra wheat remained on his farm, and never crossed state lines, Congress could not control it under its power to regulate interstate commerce. The Supreme Court rejected this argument, however, stating that, by choosing to grow his own wheat, Farmer Filburn was thus not buying wheat on the open market. And although the amount of wheat which Farmer Filburn might otherwise purchase would be minimal by itself, when taken in the aggregate--that is, if every wheat farmer grew excess wheat for his personal consumption--there would be a “substantial effect” on interstate commerce.  Thus, although Farmer Filburn’s activities were purely intrastate (within one state instead of among multiple states), Congress had the power under the Commerce Clause to prohibit Farmer Filburn from producing excess wheat for his own use.

United States v. Lopez  (1995)

Lopez was the first Supreme Court decision since the 1930’s to invalidate a law of Congress on the grounds that it exceeded Congress’s Commerce Clause power. Congress passed the Gun-Free School Zones Act which prohibited possession of a gun within a school zone. Alfonso Lopez, a high school senior, carried a gun and ammunition into his school for the stated purpose of selling it to another student. Lopez was charged with violating the Gun-Free School Zone Act. However, Lopez argued that the Act was beyond Congress’s power--his gun never crossed any state lines. Congress defended the law as an exercise of its Commerce Clause power by arguing that possession of a gun within a school zone created a dangerous learning environment, which, in turn, raised insurance costs, limited individuals’ willingness to travel within school zones, and ultimately disrupted education, the effects of which would be felt by the national economy. The Court held that the government’s arguments “piled inference upon inference” in order to make an economic effect out of an otherwise non-economic activity. The government’s reasoning, the Court noted, would leave little beyond the reach of Congress. The Court held that Congress’s Commerce Clause power allowed Congress to regulate three areas: 1) Congress may regulate the channels of interstate commerce (e.g., the roadways on which commerce occurs); 2) Congress may regulate the instrumentalities of commerce (e.g., the items actually traded in interstate commerce); and 3) Congress may regulate those activities that have a substantial effect on interstate commerce (e.g., the Court’s holding in Wickard v. Filburn).

United States v. Morrison (2000)

Morrison was the second in a series of Supreme Court opinions clarifying and limiting the scope of the Commerce Clause.  In 1994, Congress passed the Violence Against Women Act (VAWA), which, among other things, provided  victims of gender-motivated violence the right to sue their attackers in federal court. Congress defended VAWA in a manner similar to the Gun-Free School Zone in Lopez, by demonstrating the economic effects of gender-motivated violence.  The Court, however, found that VAWA was unconstitutional on Commerce Clause grounds because the effects on interstate commerce were too weak and indirect.  According to the majority, such a broad interpretation of the Commerce Clause as VAWA would “obliterate the Constitution’s distinction between national and local authority.” The majority expressed concern that by using the Commerce Clause to regulate a matter traditionally left to the states, such as basic criminal law, would “blur” the boundaries between state and federal authority.

Gonzales v. Raich (2005)

Gonzalez marks a slight departure from the Court’s opinions inLopez and Morrison by upholding an act of federal authority over a Commerce Clause challenge. California law allows the production and consumption of marijuana for medical purposes. However, under federal law medicinal marijuana is illegal. Angel Raich, who suffered from cancer, grew marijuana for her own medical use, and was charged with violating the federal Controlled Substances Act. Raich challenge Congress could criminalize her own intrastate production and consumption of marijuana for an otherwise-legal purpose that never crossed state lines. The Court rejected this challenge, holding that the issue in Raich was little different from that in Wickard. Although Raich, like Farmer Filburn 63 years earlier, produced a product solely for personal use, Congress could reasonably determine that the purely intrastate production of marijuana would have a substantial effect on the interstate market for marijuana.  In other words, Raich’s production of marijuana for her own personal use undermined federal efforts to completely ban the drug.  Justice Scalia concurred on different grounds than the majority. Although Justice Scalia voted to limit federal Commerce Clause power in Lopez andMorrison, in Gonzalez Justice Scalia stated that the the Necessary and Proper Clause gave Congress the power to ban purely intrastate production and consumption of marijuana because allowing such activities would “undercut” Congress’s otherwise constitutional attempts at curtailing the national market for marijuana.

United States v. Comstock (2010)

Comstock is the Court’s most recent statement on the meaning of the Necessary and Proper Clause and its most recent opinion of the breadth of federal power. Federal law allows the Attorney General to certify that federal inmates are “sexually dangerous persons.” Once an inmate is so designated, the government may keep the inmate in civil commitment beyond the duration of their prison sentence. The Court issued a 7-2 opinion in which it held that the civil commitment of dangerous prisoners is a “necessary and proper” law related to Congress’s otherwise-valid laws banning child pornography and passing criminal laws to enforce them. Although the Court gave numerous reasons for finding that the law at issue here was “necessary and proper”, the Court held that the Necessary and Proper Clause gives Congress broad powers to enact laws which are “rationally related” or “reasonably adapted” to Congress’s enumerated powers such as the Commerce Clause. In other words, if Congress has a reasonable belief that a law is necessary and proper to enforce one of its other enumerated powers, then Congress may enact the first law.
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Justice Voting History

This chart could help with predicting the outcome of the case and how the Justices will vote. But be careful: a lot will depend on the facts of this case and not how someone has voted in the past. [Note: the Justices are listed in order of seniority with the Chief Justice first.] Note: McCulloch v. Maryland, Gibbons v. Ogden, and Wickard v. Filburn all predate the Justices of the current Supreme Court by decades and in some cases, centuries. Nonetheless, these cases remain important statements of constitutional law that are still regularly cited by the current Court.

U.S. v. Lopez (1995)

U.S. v. Morrison (2000)

Gonzales v. Raich (2005)

U.S. v. Comstock (2010)

Roberts Not yet on Court Not yet on Court Not yet on Court Expand
Scalia Limit Limit Expand Expand
Kennedy Limit Limit Expand Expand
Thomas Limit Limit Limit Limit
Ginsburg Expand Expand Expand Expand
Breyer Expand Expand Expand Expand
Alito Not yet on Court Not yet on Court Not yet on Court Expand
Sotomayor Not yet on Court Not yet on Court Not yet on Court Expand
Kagan Not yet on Court Not yet on Court Not yet on Court Not yet on Court
Expand Interpreted the Commerce Clause/Necessary and Proper Clause to grant the federal government more power
Limit Interpreted the Commerce Clause/Necessary and Proper Clause to lessen the federal government’s power
Not yet on Court The Justice was not yet on the Court when the case was decided.
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The Arguments

The United States Dept. of Health and Human Services (Petitioner)

The petitioner (the government) argues that the individual mandate is constitutional under existing Commerce Clause precedent. Specially, the government argues that the effects of self-insuring against health problems have “direct, tangible and well-documented economic effects on interstate commerce” and thus are clearly within Congress’s power to regulate under the Commerce Clause.  Congress found that the costs of self-insuring were passed on to those individuals with insurance in the form of higher health insurance premiums.  Accordingly, it is well within Congress’s Commerce Clause power to regulate the manner in which individuals choose to pay for their health care. Further, because the individual mandate is “an integral part of a comprehensive regulatory scheme” that Congress otherwise has the power to enact (the expansion of coverage and the lowering of costs), the mandate is a valid exercise of Congress’s necessary and proper power.  It does not matter if uninsured individuals choose to remove themselves from the health insurance market, because their participation in the market (through the means of the individual mandate) is necessary for the rest of the Act to work properly.

Florida, states, and private plaintiffs (Respondent)

Respondents (here, the Attorneys General of 26 States as well as some private individuals and organizations) argue that under the government’s theory, few if any activities would be beyond the reach of Congress’s power under the Commerce Clause.  Respondents’ main argument rests on their contention that allowing the government to require individuals to purchase particular products using the Commerce Clause gives Congress a very broad and ill-defined power over nearly anything related in some manner to commerce. Finally, although respondents do not specifically raise the issue in their petition for certiarori, many challengers to the individual mandate have proposed that Congress’s power to regulate interstate commerce be capped by an activity/inactivity distinction.  That is, these commentators and litigants argue that the Commerce Clause should only be interpreted to allow Congress to regulate individuals’ affirmative actions and that here, refraining from purchasing health insurance is clearly inactivity and should thus be beyond the reach of Congress’s powers.  A lack of any similar limiting principle would render Congress’s powers plenary.
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Oral Arguments

(Coming soon!)

The Court's Opinion

(Coming soon!)
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Blog Topics


Write the Opinion - U.S. Dept. of Health and Human Services v. Florida (200 Points)

Pretend you are the Justices of the Supreme Court. Vote as a class how this case should be decided, and write an opinion discussing how this case should be resolved. If your classmates do not all agree, write concurring and dissenting opinions to explore all of your different understandings of the case. Each opinion should be at least 250 words, and reference the text of the First Amendment and at least three of the cases listed in the Relevant Precedents section.

Friend of the Court - Amicus Brief  Badge (150 points)

Pretend that you are a lawyer and you represent either a group in favor of, or opposed to the health care law. Write a 200 word Amicus (latin for Friend of the Court) Brief, arguing why the Court should consider the interests of your client. The goal of an amicus brief is to provide information to the court about the implications of their decision beyond the affect it will have on the two parties who appear before them.  Be sure to include citations to the cases, and make a strong policy argument why your side should win.

Scope of the Commerce Clause- Federalism Badge (50 points)

Should Congress be able to regulate purely local activities, or are those matters better left to local governments who might be more attuned to local concerns? On the other hand, our national economy is unquestionably interconnected in innumerable ways; might it be good for Congress to provide uniform rules for businesses whose activities surely have national impacts? Write a 150 word blog post in which you consider the merits of a broad federal Commerce Clause versus a narrow one which would leave regulation of local activities to local governments.

The Supreme Court and Popular Opinion- Separation of Powers Badge (50 points)

The Patient Protection and Affordable Care Act is one of the centerpieces of President Obama’s domestic agenda.  It has also become a lightning rod for criticism from Republicans. The individual mandate in a particular source of ill-content for many: a recent poll found that 65% of respondents did not approve of the mandate, while 35% approved of it. To what extent, if any, should the law’s popularity play into the Supreme Court’s decision-making process? Do you think that the Supreme Court loses some legitimacy in the eyes of the public if it upholds a law that enjoys little public support? Is institutional legitimacy important for a body like the Court, none of whose members are elected? Suppose the tables were reversed and 65% of Americans approved of the mandate while 35% opposed it. Should the Court then be more hesitant about striking down a popular law? Write a 150 word blog post in which you consider the merits of these arguments.  Be sure to look at the broader context as well: the Supreme Court as an institution of American government, American politics and American culture.
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Additional Resources

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