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Constitutional Arguments on the Accountable Care Act

Constitutional Arguments on the Accountable Care Act. Peter Leibold March 23, 2012. Constitutional Battlegrounds . The Anti-Injunction Act The Commerce Clause and the Necessary and Proper Clause The Taxing Power The Tenth Amendment The Severability of Unconstitutional Provisions.

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Constitutional Arguments on the Accountable Care Act

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  1. Constitutional Arguments on the Accountable Care Act Peter Leibold March 23, 2012

  2. Constitutional Battlegrounds • The Anti-Injunction Act • The Commerce Clause and the Necessary and Proper Clause • The Taxing Power • The Tenth Amendment • The Severability of Unconstitutional Provisions WSJ, 9/28/11

  3. Anti-Injunction Act • Except as provided in [several sections], no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.

  4. Anti-Injunction Act • Bars Pre-Enforcement Litigation over Taxes • Is the Individual Mandate penalty a “tax” for purposes of the AIA • The Fourth Circuit and a DC Circuit Dissenter say yes. The other circuits - No

  5. Commerce Clause and Necessary and Proper Clause “[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” “[Congress shall have the power] to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

  6. Commerce Clause • Is it or

  7. Commerce Clause • Or is it or

  8. Commerce Clause • Like Antitrust, it seems to turn on how the court defines the market: • Or

  9. Commerce Clause • Is the decision not to buy health insurance a non-economic decision not to enter a market? • Or Is it an economic decision to shift the costs of your inevitable need for healthcare to others? The formulation and the answer have enormous constitutional significance.

  10. Commerce Clause • Even if it is a non-economic decision – • Does the aggregate effect of these minor decisions, while intrastate and small in nature, have a cumulative, substantial effect on interstate commerce? or • Is the regulation of these individual, intrastate decisions not to purchase coverage necessary to accomplish a broader, interstate regulatory scheme that is within Congress’ purview?

  11. Taxing Power The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defenceand general Welfare of the United States…

  12. Taxing Power Is it a or

  13. Coercion The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

  14. Coercion Is it a or

  15. Severability Is it a or

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