1. The Patient Protection and Affordable Care Act:
Legal Review
The Learning Institute for Elders (“LIFE”) at the University of Central Florida
March 25, 2014
By: Richard S. Dellinger, Esq.,
© 2011 Lowndes, Drosdick, Doster, Kantor & Reed, P.A. All Rights Reserved

2. Jan. 8, 2013: Constitutional History
Image of constitution w/gavel

3. The Health Care Debate

4. The Patient Protection and Affordable Care Act
Signed into law March 23, 2010
Individual mandate. Insurance provided through employer, Medicaid, Medicare, Tricare, private insurance exchange. Tax penalty for uninsured.
Insurance exchanges set up to compare policies and buy insurance. Funding for states to do same.
Coverage not denied for pre-existing conditions.
Employer mandate for 50 full time employees or more or must pay a tax penalty.
Medicaid expansion, subsidies to states, lose Medicaid funding if do not expand.

5. ACA Goals
Drive down insurance cost by increasing number of people covered.
Increase by expanding eligibility for Medicaid (133% above poverty level).
Increase by setting up exchanges to sell insurance and penalizing those who do not enroll.

6. ACA Implementation Problems
States not cooperating with state based exchanges and Medicaid expansion.
Federal exchange (healthcare.gov) website problems.
Some prior plans not meet minimum levels, forcing people out of their plans.
Businesses downsizing to part time to avoid 50 full time employees.

7. National Federation of Independent Businesses v. Sebelius
Individual Mandate: Minimum essential health coverage required for all. Provided by employer, government or purchased from private company through exchange.
Medicaid Expansion: States must expand Medicaid to up to 133% of poverty level or lose all federal Medicaid funds.

8. National Federation of Independent Businesses v. Sebelius
Florida and 12 other states filed lawsuit challenging ACA in Tallahassee on the date ACA signed into law.
Later joined by 13 other states and National Federation of Independent Businesses.
Argue individual mandate exceeds Congress’ authority under Constitution.

9. Article I, Article II, Article III

10. Congress’ (Enumerated) Powers
Lay and Collect Taxes to pay debts and provide for general welfare of US (Sec. 8 cl. 1)
Borrow Money (Sec. 8 cl. 2)
Rules of Nationalization and Bankruptcy (Sec. 8 cl. 4)
Coin Money (Sec. 8 cl. 5)
Establish Post Offices (Sec. 8 cl. 7)
Raise and Support Armies and Navy (Sec. 8 cl )

11. Congress’ (Less Enumerated) Powers
To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes (Sec. 8 cl. 3) (“Commerce Clause”).

12. Commerce Clause Wickard v. Filburn (1942)
Federal government can regulate quantity of wheat a farmer can grow for private consumption in order to stabilize wheat prices on the national market.

13. Congress’ (Less Enumerated) Powers
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 (Sec. 8 cl. 18) (“Necessary and Proper” or “Elastic Clause”)

14. Necessary and Proper Clause McCulloch v. Maryland (1819)
“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution,are constitutional.”

15. Necessary and Proper

16. The Elastic Clause

18. Lower Court Decisions
District Court: Congress has no power to require individual mandate.
Eleventh Circuit: No power. No tax so not within tax power. Not commerce so not within commerce power. Individual mandate struck down.

19. Lower Court Decisions
Sixth Circuit and DC Circuit: Valid Exercise of Commerce Power.
Fourth Circuit: Can not consider future restraint on taxing power. Must pay tax first.
Eleventh Circuit: Medicaid expansion valid exercise of Spending Power.

20. Supreme Court Review
Sonia Sotomayor, Stephen Breyer, Samuel Alito, Elena Kagan
Clarence Thomas, Antonin Scalia, John G. Roberts, Anthony Kennedy, Ruth Bader Ginsburg,

21. Supreme Court Justices
Sonia Sotomayor, Stephen Breyer, Samuel Alito, Elena Kagan
Clarence Thomas, Antonin Scalia, John G. Roberts, Anthony Kennedy, Ruth Bader Ginsburg,

22. Supreme Court Evolution
Source: New York Times, July 24, 2010 and 2 law professors

23. National Federation of Independent Businesses v. Sebelius
John G. Roberts, Stephen Breyer, Elena Kagan
Ruth Bader Ginsburg, Sonia Sotomayor,
Antonin Scalia, Anthony Kennedy
Clarence Thomas, Samuel Alito

24. National Federation of Independent Businesses v
National Federation of Independent Businesses v. Sebelius (Roberts Opinion)
Individual mandate provisions of the ACA which impose a tax on those who do not purchase health insurance is within Congress’ power to tax (IIIC) (majority)
Law remains valid and states may opt in.

25. National Federation of Independent Businesses v
National Federation of Independent Businesses v. Sebelius (Roberts Opinion)
Medicaid expansion. Threat to withhold all Medicaid funding to a state who refuses to participate in the federal regulatory program is overly coercive and therefore exceeds Congress’ powers under the Spending Clause in Art. I, Sec. 8, cl. 1 (IVA)
Law remains valid and states may opt in.

26. National Federation of Independent Businesses v
National Federation of Independent Businesses v. Sebelius (Scalia, Kennedy, Thomas, Alito Opinion)
Medicaid expansion. Threat to withhold all Medicaid funding to a state who refuses to participate in the federal regulatory program is overly coercive and therefore exceeds Congress’ powers under the Spending Clause in Art. I, Sec. 8, cl. 1 (IVA)
Entire law can not be carried out without this provision.

27. National Federation of Independent Businesses v
National Federation of Independent Businesses v. Sebelius (Roberts, Scalia, Kennedy, Thomas, Alito Opinion)
Congress may not rely upon the Commerce Clause to force individuals into commerce (IIIA)(also dissent Scalia, Kennedy, Thomas, Alito so majority)
Insurance regulation is not justified under the Necessary and Proper Clause because not a component of a valid exercise of Commerce Clause, so can not be incident to it (IIIA)(also dissent Scalia, Kennedy, Thomas and Alito so majority)

28. National Federation of Independent Businesses v
National Federation of Independent Businesses v. Sebelius (Ginsburg Opinion)
Individual mandate provisions are valid exercise of the commerce clause power because uninsured impacts large market for health insurance which everyone will ultimately participate
Individual mandate provisions are a valid exercise of necessary and proper powers
Medicaid expansion and decline to fund those who do not is a valid exercise of spending power.

29. Adult Non-Parents: No Coverage
Medicaid Expansion
Attempting to expand to all between 0% and 133% of poverty line.
Florida currently provides:
Adult Parents: 31% ($289/ mo)
Adult Non-Parents: No Coverage
Children (0-1): 206% ($1972/ mo)
Children (1-5): 140% ($1341/ mo)
Children (6-18): 133% ($1341/ mo)
(Source: Center for Medicaid adn CHIP Services Publication at medicaid.gov)

30. Federal Poverty Line Household Size 100% 133% 150% 200% 250% 300% 400%
$11,670
$15,521
$17,505
$23,340
$29,175
$35,010
$46,680 2
15,730
20,921
23,595
31,460
39,325
47,190
62,920 3
19,790
26,321
29,685
39,580
49,475
59,370
79,160 4
23,850
31,721
35,775
47,700
59,625
71,550
95,400 5
27,910
37,120
41,865
55,820
69,775
83,730
111,640 6
31,970
42,520
47,955
63,940
79,925
95,910
127,880 7
36,030
47,920
54,045
72,060
90,075
108,090
144,120 8
40,090
53,320
60,135
80,180
100,225
120,270
160,360

31. Medicaid Expansion

32. Additional Cases
Do religious owners of a family business have free exercise rights that are violated by the application of the contraceptive coverage mandate of the ACA?
Conestoga Wood Specialties Corp. v. Sebelius, (3rd Cir) and Sebelius v. Hobby Lobby Stores, Inc. (10th Cir) Split
Argument set for March 25, 2014

33. Executive Actions
Treasury Department delays reporting requirements for businesses with 50 plus employees implementing the plans until 2016 (July 2, 2013).
Allowing a hardship exemption or extension in current coverage for those given notice that their existing policies do not comply (Dec. 19, 2013).

34. Source: http://www.brookings.edu/

35. Questions