Robert J. Pushaw, Jr., The Paradox of the Obamacare Decision: How Can the Federal Government have Limited Unlimited Power?

65 Fla. L. Rev. 1993 (2013) |

Robert J. Pushaw

Prof. Pushaw

National Federation of Independent Business v. Sebelius, the Supreme Court’s decision upholding the landmark Patient Protection and Affordable Care Act (ACA or “Obamacare”), sets forth the most important judicial examination of constitutional power since the New Deal era. The political and media frenzy over the Obamacare case has obscured its actual legal analysis and larger constitutional implications, which warrant more reflective study. This Article seeks to provide such a scholarly perspective.

My starting point is the ACA, which has three key provisions. First, it requires “guaranteed issue” of health insurance to all applicants and “community rating” to prevent insurance companies from varying the price of policies to account for individual characteristics such as preexisting medical conditions. Second, the ACA imposes an “Individual Mandate” (IM): Uninsured Americans “shall” obtain “minimum essential coverage” and, if they fail to meet this “individual responsibility requirement,” must pay a “penalty” to the Internal Revenue Service. Third, Obamacare dramatically expands Medicaid to millions of new recipients by requiring states to either provide health care to all of their low-income citizens or lose their current federal Medicaid funding.

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