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Tag Archives: constitution

11.16.09

Returning to the Articles of Confederation?

By Tim Jost

A week ago the House of Representatives adopted HR 3962, the “Affordable Health Care for America Act.” In the very near future, the Senate will begin consideration of some version of the “America’s Healthy Future Act” or the “Affordable Health Choices Act.” Although we do not know the exact language of the Senate bill, its […]

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10.24.09

More Legal Issues Raised by Health Insurance Exchange Legislation

By Tim Jost

The following is part of a memorandum on legal and policy issues raised by health insurance exchanges, which will be presented at the O’Neill Center’s Legal Issues in Health Care Reform conference on Monday, October 26. The full paper from which it is taken is available here. In my last post, I discussed the constitutional […]

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10.23.09

Constitutional Limits on Insurance Regulation

By Tim Jost

The following is part of a longer paper addressing legal and policy issues raised by health insurance exchanges, which will be presented at the O’Neill Center’s Legal Issues in Health Reform symposium on Monday, October 26. The health reform legislation pending in Congress would dramatically expand federal regulation of health insurance. Indeed, in most states […]

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10.08.09

Is it a Tax? Is it Constitutional?

By Tim Jost

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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09.29.09

Firing Again on Fort Sumter

By Tim Jost

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

CBS Covers Constitutionality Debate

By Nan Hunter

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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09.27.09

Proposed Health Reform Legislation Raises (but does not resolve) Important Procedural Issues

By Tim Jost

In our last post we demonstrated that Congress has the authority under Article I of the Constitution to adopt all of the health reform proposals it is currently considering seriously (or at least that the current Supreme Court would uphold the authority of Congress to do so). This does not mean, however, that Congress is […]

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09.23.09

Response: Does Health Care Reform Violate the Real Constitution?

By Tim Jost

In response to Does Health Care Reform Violate the Real Constitution? by Mark A. Hall Mark is correct in identifying the individual mandate as the only component of the proposed health care reform legislation that raises a more than trivial constitutional question. The other elements of the legislation—insurance industry reforms, health insurance exchanges, the employer […]

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09.23.09

Does Health Care Reform Violate the Real Constitution?

By Mark Hall

Is health care reform constitutional – especially an individual mandate. The answer is “no” according to an increasing chorus of conservative legal opinions, here, here, here, here, here, here, and here. As Sen. Patrick Moynihan once quipped, “everyone is entitled to his own opinion, but not his own facts.” So too for law. Certainly, one […]

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The views reflected in this expert column 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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