Category Archives: Legal Issues

10.13.09

ERISA Preemption and Health Reform: Should the Department of Justice Switch Sides?

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In my article on ERISA preemption for the O’Neill Institute’s Legal Solutions in Health Reform, I argued that pay-or-play initiatives, such as those enacted in Maryland, San Francisco, and Massachusetts, are vulnerable to an ERISA preemption challenge.  Two Circuit Court opinions present the issue directly.  The 4th Circuit overturned the Maryland law based on ERISA […]

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10.11.09

An Income Tax that Doesn’t Tax Income?

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Tim’s detailed analysis of tax provisions in the Constitution that might apply to health reform is the most thorough I know of, but it only begins to map the issues, which are tricky and important enough that they deserve more attention from constitutional tax law experts. As I synthesize Tim’s points, it seems that the […]

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10.08.09

Is it a Tax? Is it Constitutional?

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By far the most controversial provision of the health care reform legislation pending in Congress from a constitutional perspective has been the individual mandate. The primary controversy has concerned the issue, which we addressed two weeks ago, of whether the commerce clause authorizes Congress to impose an individual mandate. A different constitutional issue, however, was […]

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10.06.09

Can Tort Reform Bend the Cost Curve?

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On October 6, 2009, the O’Neill Institute hosted a panel on “Medical Malpractice and Health Care Costs: Can Tort Reform Bend the Curve?” to discuss the likely impact of proposed tort reforms on medical mistakes, malpractice system costs, and overall health spending, and why politicians and the press don’t always pay attention to the existing […]

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10.05.09

Professor Clark Havighurst Responds to Proposal Amending Health Insurance Antitrust Laws

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Recently, Members of Congress have introduced legislation to change the antitrust laws as they relate to health insurance. (See: Modern Healthcare of September 18; free registration is required to view). Some have discussed including such legislation as part of comprehensive health reform. Clark Havighurst of Duke University Law School is the godfather of the field […]

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09.30.09

A Further Thought on State Nullification

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I would put this a bit more strongly than Mark. Talk of state nullification argues powerfully for the federal government directly enforcing insurance reforms and administering the exchanges and premium subsidies, the approach taken by the House bill HR 3200, rather than depending on the states in implement the reforms, the approach taken by the […]

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09.30.09

Civil War Redux

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As Tim Jost well explains, the principle of Federal Supremacy is so well settled that the threat by some state governors or legislators to bar their citizens from complying with federal health care reform is overt legal defiance, or a form of civil disobedience if you will. Civil disobedience might be justified in some circumstances, […]

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09.29.09

Firing Again on Fort Sumter

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The health law reform constitutional law issue de jour seems to be whether the states by adopting amendments to their own constitutions can block implementation of the individual mandate on their soil. See the New York Times article, Health Care Overhaul and Mandatory Coverage Stir States’ Rights Claims. Most notably, Arizona has placed a constitutional […]

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09.27.09

Substance Over Process

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Tim Jost is correct that procedural issues are being neglected in the tortuous legislative process that hopefully is leading to some meaningful reform.  But, we all know the quip about making sausages and laws.  Administrative and judicial remedies may simply need to be part of the long list of issues that Congress comes back to later, […]

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09.27.09

CBS Covers Constitutionality Debate

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From CBS News: Is Mandatory Health Insurance Constitutional? In the last few days, a new argument has emerged in the debate over Democratic health care proposals: Are they constitutional? More precisely, can the federal government force Americans to buy health insurance? “Mandatory Insurance Is Unconstitutional” is the unapologetic title of an op-ed last week in […]

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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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