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Author Archives: Mark Hall

03.26.10

Are The Attorneys General’s Constitutional Claims Bogus?

By Mark Hall

Immediately after passage of health care reform, over a dozen state A.G.s sued to declare it unconstitutional, as violating states’ rights.  The Florida complaint is here, and Virginia’s here. Reminiscent of southern governors in the 1960s blocking their state universities’ gates, these legal officers in effect are saying “not on our sovereign soil.”  Since the […]

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01.21.10

Congressional Power to Regulate Inactivity

By Mark Hall

[T]here’s pretty much nothing that Congress can’t do and that’s the end of the enumerated power scheme . . . if the Supreme Court were to uphold the Constitutionality of the individual mandate.  So says Randy Barnett in an interview on NPR’s Morning Edition earlier this week, in which he reprised his Heritage Foundation argument. […]

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01.02.10

Confiscatory Insurance Regulation: Yet Another Constitutional Attack, Rebutted

By Mark Hall

The formidable Richard Epstein has launched the latest attack on the constitutionality of health care reform.  He argues that minimum medical loss ratios coupled with tougher insurance standards are “confiscatory” rate regulation that vioate the Takings Clause or substantive due process.   As with other right-wing constitutional attacks, he suggests this conclusion is firmly based in […]

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11.24.09

Senate Bill’s Interstate Commerce Findings

By Mark Hall

Here is a link to the Senate’s health care bill.  Perusing some of its 2000 pages, I came across the following, SEC. 1501 (p. 320), which should put to rest any argument that an individual mandate exceeds Congress’ powers under the Commerce Clause: Congress makes the following findings: In GENERAL.—The individual responsibility requirement provided for in […]

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11.10.09

What About ERISA’s Tort Liability Pre-Emption?

By Mark Hall

In addition to largely ignoring tort reform, the health reform process is ignoring the hash that Congress and courts previously have made of ERISA’s pre-emption of state tort suits against health insurers.  Readers will recall that, according to AETNA v. Davila, 542 U.S. 200 (2004), personal injuries caused by insurance claims denials cannot be adequately […]

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11.03.09

The Story of Murphy: Hope or Death Knell for Health Insurance Tax Protesters?

By Mark Hall

Thinking about using tax law to enforce either an individual or employer mandate has led me down the dark paths of seldom-discussed constitutional provisions relating to excise, direct, and income taxes.  At one surprising turn, I encountered the Murphy case from the D.C. Circuit, 460 F.3d 79 (D.C. Cir. 2006), rev’d on rehearing, 493 F.3d […]

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10.29.09

Do We Need More Competition Among Insurers?

By Mark Hall

All the talk about repealing insurers’ antitrust exemption and creating a public plan to compete with them raises the question: what will more competition among health insurers really accomplish? Recall that competition among hospitals often increases rather than reduces prices. Can insurer competition work better that that, or than it does now? One key is […]

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10.14.09

“Taking” Legal and Economic Liberties, Seriously?

By Mark Hall

Constitutional opposition to an individual mandate is usually argued in terms of lack of federal power, but the real motivation is the feeling that a mandate violates individual rights. Opponents would be no less exorcised if a mandate came from the States, which generally have plenary authority over social and economic matters. What basis might […]

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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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