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Wednesday, December 14, 2011

Teaching the Affordable Care Act Litigation in Con Law

I'll be teaching Con Law for the first time in the spring.  I'm planning to devote a significant amount of time to the pending challenge to the Affordable Care Act.  Our basic 1L Con Law class focuses on structural concerns, so the ACA case should nicely complement the rest of the course content.  In particular, I'm hoping that the case will help students to appreciate more fully the contemporary relevance of old chestnuts like McCulloch v. Maryland, as well as provide a platform for studying various aspects of current Supreme Court practice (e.g., cert. petitions, amicus briefs, and oral argument). 

If any other Con Law teachers have similar inclinations, I'd be very interested in ideas about how to pull this off most effectively.  My current plan is to spend the first class session discussing the Eleventh Circuit opinion -- I've just finished editing it down to a size that I think will make a fair first-day reading assignment (happy to share if anyone is interested) -- and then return to the case once every two or three weeks for the rest of the semester, assigning portions of briefs or other documents that relate to the cases from the casebook that we've just discussed.  I hope that we'll be able to listen to some oral argument, too, although I don't know how quickly that will be made available.

Posted by Michael O'Hear on December 14, 2011 at 11:09 PM in Constitutional thoughts, Teaching Law | Permalink


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The op-ed is helpful.

"Rather than directly imposing a “single-payer” insurance regime, the act requires everyone to purchase their own health insurance by 2014 — with a few exceptions, including those covered by Medicare or Medicaid."

The "few exceptions," putting aside the religious exemptions, those not covered for less than three months, etc., covers quite a few people. How many are on Medicaid alone? The phrasing is appreciated to the degree that it at least cites those two programs. Many say "few exceptions," which sends the message that few people are involved.

Also, "annual tax penalty." Well, I am okay with that, but since some don't want to call it a "tax," I guess some might not be. As to the broccoli police, if the BOR factors in at all, "states can regulate as they please" very well might be misleading, since the due process interests are not just limited to the feds.

As a whole, though, the op-ed is worthwhile.

Posted by: Joe | Dec 16, 2011 10:47:14 AM

Incidentally, for MIchael and others thinking about teaching this, I was asked by the local paper, the Tuscaloosa News, to do a reader-friendly op-ed discussing the issues raised by the healthcare appeal. I tried to write it so any reader could follow the basic debates. Lord knows its coverage is incomplete, but your students might find this useful at the outset. Here's the link:


Posted by: Paul Horwitz | Dec 16, 2011 8:58:52 AM

"I hope that we'll be able to listen to some oral argument, too, although I don't know how quickly that will be made available."

The lower court argument might be available. The Supreme Court now releases audio at the end of the week of argument though there in a few cases they accelerated that. Eventually, Oyez.com also releases opinion day audio, which in this case might be of special interest.

Posted by: Joe | Dec 16, 2011 8:31:15 AM

Thanks for the comment, Asher. We'll be covering a series of materials relating to the case, including portions of the briefs. The Eleventh Circuit opinion is just the starting point.

Posted by: Michael O'Hear | Dec 15, 2011 10:45:30 PM

As a student, I'm curious - why are you teaching the Eleventh Circuit opinion instead of Sutton's or Silberman's? I thought it was rather poor, and I doubt that Clement's merits briefing is going to look much like the Dubina-Hull opinion. They explicitly reject the activity/inactivity distinction, only to hold for plaintiffs on a sort of ad hoc, "mandates just go too far" theory. I think you'd be better off assigning Clement's brief, when it comes out, and Sutton's opinion.

Posted by: Asher | Dec 15, 2011 5:35:54 PM


I like that take on things. While I have no premonition about which side of the "activity/inactivity" line the Court will fall here, I don't think the line itself can have much more success than any of it predecessors. First, it has a "one-trick pony" kind of feel to it. How many other inactivity cases are we likely to see? And second, it has just about as little bearing as its predecessors on the constitutional/structural function of the commerce clause--which, IMO, is to allow a transcendent authority to step in and resolve economic problems the states can't (or are ill-equipped) to take on. I.e., race-to-the-bottom, protectionism, etc... To my mind, Lopez comes closest to addressing this *structural* meaning of commerce among the several states. Again, whether "activity/inactivity" says anything useful at all about this is, I think, dubious...

Posted by: Ian Bartrum | Dec 15, 2011 5:34:52 PM

Hi Michael -- for me, a big "story" in the first-year Con Law class is the Court's effort to find judicially administrable lines and limits, with respect to both the enumerated powers of Congress and the reserved powers of the states: "manufacturing" v. "commerce" doesn't work (we were told); "direct" v. "indirect" doesn't work; etc., etc. So, the Court gives up (Wickard) . . . for a while (Lopez) . . . but then (seems to) give up again (Raich), settling for some symbolic affirmations of the importance of the Constitution's structural features and of the non-infinity principle. In the ACA litigation, it seems to me, the Court is confronting another proposed line: "activity" (can be regulated) v. "inactivity" (cannot be). Will this proposed judicially-enforceable line fare any better? Stay tuned!

Posted by: Rick Garnett | Dec 15, 2011 4:32:10 PM

Michael, I hope you don't mind my asking, but would you email me the edited version of the case? I've been planning on doing something similar this year, and I'd love to see your version of the 11th Circuit opinion. Thank you! Paul

Posted by: Paul Horwitz | Dec 15, 2011 3:12:23 PM

I plan to do something similar (though I really like the idea of adding cert petitions into the mix), but I'm not going to begin the mini-case study until after we've talked about the Commerce Clause and 10th Amendment. That means we'll first focus on the ACA three weeks into the semester. Part of my reasoning for delaying it until then is for the reason that Howard mentions. While I expect them to often turn to policy/ideology in their arguments, I want to be able to remind them of the constitutional principles at stake and I think it's only fair to do that once they've learned about them.

We'll then follow the ACA legal debate as we cover other topics within the structure of the course.

Posted by: Michael Teter | Dec 15, 2011 1:02:00 PM

That's a fair concern to raise, Howard, but I'm not sure if the difficulties will be any greater than with some of the other standard Con Law cases, e.g., Roe and Lawrence.

Posted by: Michael O'Hear | Dec 15, 2011 10:54:23 AM

I don't teach Con Law, but I think this is a great idea (even if I don't see how this will help the students know what form to file to do a merger the day after they graduate law school :-)). But I would be very wary of students not doing the reading and falling back on their policy preferences and what they know from cable news, without bringing to bear what they are supposed to be learning. How do you control the conversation when a student starts making passionate arguments that are (obviously) not grounded in what they're supposed to be doing and getting from class.

Posted by: Howard Wasserman | Dec 15, 2011 6:51:07 AM

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