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Bar Association of San Francisco Member Benefits: Publications

The Patient Protection and Affordable Care Act: Is it Constitutional?

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By Ben Feuer, Esq. Co-Chair, Barristers Club Appellate Section


Sometime next March, the U.S. Supreme Court will hear five and a half hours of oral argument — a modern record — to decide whether President Barack Obama's signature healthcare initiative, the Patient Protection and Affordable Care Act, is constitutional. The law radically reshapes the structure of healthcare in the United States, mandating that every individual over a certain income possess private health insurance, prohibiting insurers from refusing coverage due to pre-existing conditions, requiring medium-size and larger businesses to offer group insurance plans, and dramatically expanding the reach of Medicare. The act, derided by its critics as “Obamacare,” also has had a tremendous political impact, not only to the approval ratings of President Obama and Republican Presidential candidate Mitt Romney, who introduced a similar program in the state he governed, Massachusetts, but also in birthing the Tea Party movement and reintroducing Americans to the sort of pitchfork-and-torches “town halls” they had not seen since colonial days.

Despite the law’s marquee effects, how much of it will survive Supreme Court review is far from certain. The lower courts have split on the statute’s constitutionality, and while only one circuit court has struck the law, the three that upheld it each did so by different reasoning – and most of those opinions had a dissent. The Supreme Court granted three separate petitions for certiorari related to the act and will take briefs from all the parties, including the 26 states that have sued to block the law, and scores of amici. On top of that, the Court has appointed two former clerks to argue positions that neither the government nor any of the petitioners advocate, and it will consider the case in the echo-chamber that is election-year Washington.

On December 6, 2011 the Appellate Section of the Barristers Club hosted a discussion and debate on what all this means for the law’s prospects at the United States Supreme Court, with noted left-wing scholar and UC Irvine Law School Dean Erwin Chemerinsky, former Republican California Attorney General candidate and Chapman Law School Dean John Eastman, and UC Berkeley political science professor and Institute for Governmental Affairs director Jack Citrin. The panelists discussed what the Supreme Court will do, what it should do, and what the political, social, and economic effects of each might be.

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Ben Feuer is an appellate attorney in San Francisco and of counsel to Eisenberg & Hancock LLP. He served as a law clerk on the Ninth Circuit Court of Appeals and is the founder and co-chair of the Appellate Section of the Barristers Club.

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