Hostname: page-component-cd9895bd7-gbm5v Total loading time: 0 Render date: 2024-12-26T09:48:29.817Z Has data issue: false hasContentIssue false

Beyond the Market: The Role of Constitutions in Health Care System Convergence in the United States of America and the United Kingdom

Published online by Cambridge University Press:  01 January 2021

Extract

Two narratives have emerged to describe recent health care reforms in the United States of America (US) and the United Kingdom (UK). One narrative speaks of revolution, that the adoptions of the Affordable Care Act 2010 (ACA) in the US, and the Health and Social Care Act 2012 (HSCA) in the UK, have resulted in fundamental, large-scale philosophical, political and legal change in the jurisdictions’ respective health care systems. The other narrative evokes evolution, identifying each new legislative scheme as a natural development of existing governance structures. Policymakers in both the US and UK face the problem of a health care system which, as traditionally envisaged, cannot offer universal access to health care at a reasonable, or politically acceptable, price

Type
Symposium
Copyright
Copyright © American Society of Law, Medicine and Ethics 2014

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Blackman, J., Unprecedented: The Constitutional Challenge to Obamacare (New York: Public Affairs, 2013): At Foreword.Rivkin, D. B. Jr. Casey, L. A., “Mandatory Insurance Is Unconstitutional,” Washington Post, September 18, 2009, available at <http://online.wsj.com/news/articles/SB10001424052970204518504574416623109362480> (last visited November 3, 2014).Davies, A. C. L., “This Time, It's for Real: The Health and Social Care Act 2012”, Modern Law Review 76, no. 3 (2013): 564–588.Pownall, H., “Neoliberalism, Austerity and the Health and Social Care Act 2012: The Coalition Government's Programme for the NHS and Its Implications for the Public Sector Workforce,” Industrial Law Journal 42, no. 4(2013): 422433.The King's Fund, Never Again? The Story of the Health and Social Care Act 2012 (2012) (www.kingsfund.org.uk/publications/never-again).Hunter, D. J., “Will 1 April Mark the Beginning of the End of England's NHS? Yes,” British Medical Journal 346, no. 1(2013): 14–15, at 14.Google Scholar
Id. (Blackman), at xxid. (Pownall), at 422424.Google Scholar
Hacker, J., Health care For America, Economic Policy Institute Briefing Paper, #180 (Jan. 11, 2007): At 11;Cooper, C., “Cameron Speech: NHS Reforms Will Be ‘Evolution Not Revolution,’” GP Online, available at <http://www.gponline.com/News/article/1070089/Cameron-speech-NHS-reforms-will-evolution-not-revolution> (last visited November 3, 2014).Le Grand, J., “Will 1 April Mark the Beginning of the End of England's NHS? No,” British Medical Journal 346, no. 1(2013): 1415, at 14.Google Scholar
See Davies, , supra note 1, at 565566. Similar principles to those contained within the HSCA find their roots in a report published by the Labour Government in 2002, see Department of Health, Delivering the NHS Plan (Command Paper 5503 April 2002): At para. 2.Google Scholar
Maclean, N., Distributing Health Care: Principles, Practices and Politics (Charlottesville: Imprint Academic, 2007): At 23;Democratic Policy and Communications Committee, The Patient Protection and Affordable Care Act: Detailed Summary, available at <http://dpc.senate.gov/healthreformbill/health-bill04.pdf>(last visited November 3, 2014);Audit Commission, More for Less, Health Briefing (November 2009), available at <http://archive.audit-commission.gov.uk/auditcommission/sitecollectiondocuments/AuditCommissionReports/NationalStudies/20101216moreforless200910.pdf>(last visited November 3, 2014);Department of Health, Health and Social Care Act 2012 Fact Sheet, available at <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/138257/A1.-Factsheet-Overview-240412.pdf>(last visited November 3, 2014): Para. 2–5.Google Scholar
Lameie, N. Joffe, P. Wiedermann, M., “Health Care Systems- An International Review: An Overview,” Nephrol Dial Transplant 14, Supp. 6 (1999): At 39A.CrossRefGoogle Scholar
See 26 U.S.C. § 5000A(a);Parmet, W. E., “The Individual Mandate: Implications for Public Health Law,” Journal of Law, Medicine & Ethics 39, no. 3(2011): 40–423, at 401.CrossRefGoogle Scholar
See Davies, , supra note 1, at 567.Google Scholar
A consideration for the future is whether this “convergence ” is upon a Bismarckian ground; however, this is outside the scope of this essay.Google Scholar
Wendt, C. Grimmeisen, S. Helmert, U. Rothgang, H. Cacace, M., “Convergence or Divergence of OECD Health Care Systems?” Working Paper No. 9, University of Bremen, Collaborative Research Center 597: Transformations of the State, 2004.Google Scholar
Organization for Economic Cooperation and Development, “The Reform of Health Care Systems: A Review of Seventeen OECD Countries,” Health Policy Study No. 5, 45 (1994): At 61: “The most remarkable feature of the health system reform among the seventeen countries is the degree of emerging convergence.”;Minow, M., “Is Pluralism an Ideal or a Compromise?” Connecticut Law Review 40, no. 5(2008): 12871314, at 1300.Google Scholar
While the United Kingdom does not have a “Constitution,” a codified document in the American sense, it does have a constitution, a collection of rules for government. See Bogdanor, V., The New British Constitution (Oxford: Hart Publishing, 2003): At 311;Zurcher, A. J., Constitutions and Constitutional Trends Since World War II: An Examination of Significant Aspects of Post War Public Law with Particular Reference to the New Constitutions of Western Europe (Oxford: OUP, 1952): at 175–176.Google Scholar
Friedman, B., The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (New York: Farrar Straus, 2010): at 36768.Google Scholar
Balkin, J., Living Originalism (Cambridge: HUP, 2010): At 4.Google Scholar
Dolgin, J. Dieterich, K., “Social and Legal Debate About the Affordable Care Act,” University of Missouri-Kansas City Law Review 80, no. 1(2011): 4590, at 45.Google Scholar
Barnett, R. Stewart, N. Gaziano, T. F., “Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional,” The Heritage Found, December 9, 2009, available at <http://www.heritage.org/research/reports/2009/12/why-the-personal-mandate-to-buy-health-insurance-is-unprecedented-and-unconstitutional>(last visited November 3, 2014).(last+visited+November+3,+2014).>Google Scholar
See Blackman, , supra note 1, at 1.Google Scholar
See Davies, , supra note 1, at title.Google Scholar
See Pownall, , supra note 1, at 422.Google Scholar
Id., at 423.Google Scholar
Id., at 424.Google Scholar
Klein, R., The New Politics of the NHS: From Creation to Reinvention (London: Radcliffe, 2013): At 279.Google Scholar
Wehner, P., “Obama and Health Care: His Suicide Mission for Democrats”, available at <http://www.eppc.org/publications/obama-and-health-care-his-suicide-mission-for-democrats/> (last visited November 3, 2014).+(last+visited+November+3,+2014).>Google Scholar
Lawson, N., The View from Number 11: Memoirs of a Tory Radical (London: Bantam, 1992): At 613.Google Scholar
Department of Health, Equity and Excellence: Liberating the NHS (Command Paper 7881, July 2010).Google Scholar
See Klein, , supra note 22, at 279.Google Scholar
See Fund, King's, supra note 1, at 4.Google Scholar
Health and Social Care Act 2012, s75(1)(c).Google Scholar
Id., a75(1)(b).Google Scholar
Id., ss 6170. One potentially tricky consequence of competition in UK health care is the extent to which it renders the NHS and its associated bodies subject to both domestic and European Union competition law. Space precludes a discussion here but Goulding's overview provides a flavor of the issues: <http://eutopialaw.com/2013/07/19/is-the-nhs-subject-to-competition-law/>(last visited November 3, 2014).(last visited November 3, 2014).' href=https://scholar.google.com/scholar?q=Id.,+ss+61–70.+One+potentially+tricky+consequence+of+competition+in+UK+health+care+is+the+extent+to+which+it+renders+the+NHS+and+its+associated+bodies+subject+to+both+domestic+and+European+Union+competition+law.+Space+precludes+a+discussion+here+but+Goulding's+overview+provides+a+flavor+of+the+issues:+(last+visited+November+3,+2014).>Google Scholar
Id., at ss7280.Google Scholar
Leflar, R. B., “Reform of the United States Health care System: An Overview,” Arkansas Law Notes (2013): 1171, para. [2].Google Scholar
Hansard, Debbie Abrahams (Oldham East and Saddleworth) (Lab), HC, 31 Jan 2011: Column 646Hansard, Wicks, Malcolm (Croydon North) (Lab), HC, January 31, 2011: Column 671Hansard, Healey, John (Wentworth and Dearne) (Lab) HC: 31 Jan 2011: Column 624.Google Scholar
Representative Poe (Tx.), “Will We Choose Tyranny or Liberty?” Congressional Record (March 21, 2010), Daily Ed. H1821Representative Price, “Dark Day for America,” Congressional Record (March 22, 2010), [H2175]Representative Foxx (State), “Government Takeover of Health care,” Congressional Record (September 23, 2009) [H9812].Google Scholar
Representative Burton (Ind.), “The Tragedy of a Socialist America and its Destruction of Health Care,” Congressional Record (July 15, 2009) [H8162][Representative] Blackburn (Abbreviated state.), “Freedom Dies a Little Bit Today,” Congressional Record (March 21, 2010), Daily ed. [H1820];Hansard, Burnham, Andy (Leigh) (Lab) HC, 20 Mar 2012: Column 718;see King's Fund, supra note 1.Google Scholar
Hansard, Healey, John (MP) (Lab) HC, January 31, 2011: Column 627, “will create the monster of a full-blown market in health care which GPs will not control and nor will Ministers or Parliament”Hansard, Donaghy, Baroness, HL, October 12, 2011: Column 1693.Google Scholar
Representative Poe, “No to Government-Run Health care,” Congressional Record (November 6, 2009), H12554Representative Poe, “Health care Rationing Could Result in Death Penalty in the United Kingdom,” Congressional Record (June 12, 2009), H6622.Google Scholar
Hansard, Davies, Geraint (Swansea West) (Lab/Co-op) HC, January 31, 2011: Column 687.Google Scholar
Brennan, W., “Why Have a Bill of Rights?” Valparaiso University Law Review 26, no. 1(1991): 119, at 19.Google Scholar
Worth Bank, Health Expenditure Totals (& of GDP), available at <http://data.worldbank.org/indicator/SH.XPD.TOTL.ZS> (last visited November 3, 2014).+(last+visited+November+3,+2014).>Google Scholar
U.S. Census Bureau, “Income, Poverty and Health Insurance Coverage in the United States,": 2010 available at <http://www.census.gov/newsroom/releases/archives/income_wealth/cb11–157.html> (last visited November 3, 2014).+(last+visited+November+3,+2014).>Google Scholar
UK Public Spending, Spending Figures for Government, <http://www.ukpublicspending.co.uk/total_spending_2013UKbn> (last visited November 3, 2014).Exchange into U.S. dollars undertaken on November 22, 2014: £1=$1.56.+(last+visited+November+3,+2014).Exchange+into+U.S.+dollars+undertaken+on+November+22,+2014:+£1=$1.56.>Google Scholar
Hansard, , Health and Social Care Act Debate, HC, September 7, 2011: Column 362.Google Scholar
Russell, M., The Contemporary House of Lords: Westminster Bicameralism Revived (Croydon: OUP, 2013): At 108.CrossRefGoogle Scholar
Hansard, , Health and Social Care Bill – Committee (7th Day), HL, November 22, 2011: Column 990.Google Scholar
Hansard, , Health and Social Care Bill – Reject at Second Reading, HL, October 12, 2011: Column 1711.Google Scholar
See Russell, , supra note 45, at 103104.Google Scholar
Open Congress, available at <http://projects.washingtonpost.com/congress/111/house/members/> (last visited November 4, 2014): Identifies that Representatives sided with their party position 94% of the time.+(last+visited+November+4,+2014):+Identifies+that+Representatives+sided+with+their+party+position+94%+of+the+time.>Google Scholar
“Congress is becoming more like a parliamentary system – where everyone simply votes with their party and those in charge employ every possible tactic to block the other side. But that is not what America is all about, and it's not what the Founders intended. In fact, the Senate's requirement of a supermajority to pass significant legislation encourages its members to work in a bipartisan fashion.” – Senator Snowe, “Why I'm Leaving the Senate,” Reader Supported News, available at <http://readersupportednews.org/opinion2/270–37/10252-focus-why-im-leaving-the-senate>(last visited November 4, 2014).(last visited November 4, 2014).' href=https://scholar.google.com/scholar?q=“Congress+is+becoming+more+like+a+parliamentary+system+–+where+everyone+simply+votes+with+their+party+and+those+in+charge+employ+every+possible+tactic+to+block+the+other+side.+But+that+is+not+what+America+is+all+about,+and+it's+not+what+the+Founders+intended.+In+fact,+the+Senate's+requirement+of+a+supermajority+to+pass+significant+legislation+encourages+its+members+to+work+in+a+bipartisan+fashion.”+–+Senator+Snowe,+“Why+I'm+Leaving+the+Senate,”+Reader+Supported+News,+available+at+(last+visited+November+4,+2014).>Google Scholar
Madison, J. Hamilton, A. Jay, J., The Federalist Papers: Federalist Paper 57 (Signet Classic, 2003): At 348.Google Scholar
Id., at The Federalist No. 52, at 324.Google Scholar
See Open Congress, supra note 49.Google Scholar
Marcus, L., “Evil Democrat Paradigms,” American Thinker, available at <http://www.americanthinker.com/2010/09/evil_democrat_paradigms.html>(last visited November 4, 2014).(last+visited+November+4,+2014).>Google Scholar
Public Whip, “Voting Records,” available at <http://www.publicwhip.org.uk/divisions.php?house=lords&sort=subject> (last visited November 4, 2014).+(last+visited+November+4,+2014).>Google Scholar
Russell, M. Sciara, M., “Independent Parliamentarians en Masse: The Changing Nature and Role of the ‘Crossbenchers' in the House of Lords,” Parliamentary Affairs no. 1 (2008): At fn17 Hansard, Richard, Lord, HL, October 14, 1998, Columns 945–6.Google Scholar
Id. (Russell and Sciara), at 8.Google Scholar
Halpin, H. Harbage, P., “The Origins and Demise of the Public Option,” Health Affairs 29, no. 6(2010): 11171124, at (1119); Raju, M., “Joe Lieberman: I'll Block Vote on Harry Reid's Plan,” available at <http://www.politico.com/news/stories/1009/28788.html>(last visited November 4, 2014).CrossRefGoogle Scholar
Id. (Halpin and Harbage), at 1121.Google Scholar
Fisk, C. Chemerinsky, E., “The Filibuster,” Stanford Law Review 49, no. 2 (1997): 181–254, at 181, 199–200, explaining the tradition of the filibuster.CrossRefGoogle Scholar
Jacobs, L. Skocpol, T., Health Care Reform and American Politics: What Everyone Needs to Know (New York: OUP, 2012): At 191, defining Lieberman as “necessary.”Google Scholar
Brasfield, J., “The Politics of Ideas: Where Did the Public Option Come from and Where Is It Going?” Journal of Health Politics, Policy and Law 36, no. 4(2011): At 455459.Herzenhorn, D. M., “Lieberman vs. the ‘Public Option’ Patriarch,” New York Times, December 15, 2009, available at <http://prescriptions.blogs.nytimes.com/2009/12/15/lieberman-vs-the-public-option-patriarch> (last visited November 4, 2014).CrossRefGoogle Scholar
See Jacobs, Skocpol, , supra note 63, at 7782.Google Scholar
Shapiro, I., “A Long Strange Trip: My First Year Challenging the Constitutionality of Obamacare,” Florida International University Law Review 6, no. 1(2010): 29–59, at 31.Google Scholar
Kang, M., “Sore Loser Laws and Democratic Contestation,” Georgetown Law Journal 99, no. 4(2013): 1013–1077, at 1050.Google Scholar
McGreal, C., “Why Joe Lieberman Is Holding Barack Obama to Ransom over Health Care,” available at <http://www.theguardian.com/world/2009/dec/16/joe-lieberman-barackobama-us-healthcare>(last visited November 4, 2014).(last+visited+November+4,+2014).>Google Scholar
Strassel, K. A., “No Way, No How, to the Public Option,” Wall Street Journal, available at <http://online.wsj.com/news/articles/SB10001424052748704007804574574652325364622>(last visited November 4, 2014).(last+visited+November+4,+2014).>Google Scholar
See Brasfield, , supra note 64.Google Scholar
Bogdanor, V., The Coalition and the Constitution (Oxford: Hart, 2011): At 1–9. Provides a good summary of the party positions post 2010 General Election.Google Scholar
Cannan, J., “A Legislative History of the Affordable Care Act: How Legislative Procedure Shapes Legislative History,” Law Library Journal 105, no. 2(2013): 131–179, at 163.Hall, M., “Health Care Law Raises Questions on Abortions,”USA Today, available at <http://www.usatoday.com/news/washington/2010-07-15-abortion15_ST_N.htm>(last visited November 4,2014).Google Scholar
Conservative Party Manifesto 2010 General Election, Invitation to Join the Government of Britain, at 45.Google Scholar
See King's Fund, supra note 1, at 131133.Liberal Democrat leader, Nick Clegg, in fact told his party that because of their work, NHS reform was now “evolution and not revolution.”Google Scholar
See The King's Fund, supra note 1, at 48.Google Scholar
Liberal Democrat Manifesto 2010 General Election, at 40.Google Scholar
See The King's Fund, supra note 1, at 48.Google Scholar
Liberal Democrats, Health and Social Care Bill Achievements, available at <http://www.libdems.org.uk/siteFiles/resources/docs/policy/Health/HSC%20Bill%20Achievements%20March%202012.pdf>(last visited February 6, 2014). “The Bill in its current form is markedly different to the original legislation, and many of the changes are the direct result of the hard work and scrutiny of Liberal Democrats.”.(last+visited+February+6,+2014).+“The+Bill+in+its+current+form+is+markedly+different+to+the+original+legislation,+and+many+of+the+changes+are+the+direct+result+of+the+hard+work+and+scrutiny+of+Liberal+Democrats.”.>Google Scholar
Department of Health, Government Response to the NHS Future Forum report, Cm 8113, June 2011.Google Scholar
See King's Fund, supra note 1, at 126138.Google Scholar
See Liberal Democrats, supra note 79, at 24, at 7.Google Scholar
Id., at 3.Google Scholar
Id., at 3, at 78.Google Scholar
Id., at 4.Google Scholar
Id., at 3.Google Scholar
See King's Fund, supra note 1, at 118119.Google Scholar
Over the past 50 years, The President, House of Representatives and Senate have only been controlled by the same party for sixteen years.Google Scholar
Moorhead, M., “Obamacare Stands,” available at <http://www.politifact.com/truth-o-meter/promises/gop-pledge-o-meter/promise/655/repeal-the-health-care-bill/>(last visited November 4, 2014). Between January 2011 and July 2012, the Republican Party, now in control of the House of Representatives attempted to repeal the PPACA 30 times.(last+visited+November+4,+2014).+Between+January+2011+and+July+2012,+the+Republican+Party,+now+in+control+of+the+House+of+Representatives+attempted+to+repeal+the+PPACA+30+times.>Google Scholar
Donahue, J., Disunited States (New York: Perseus Books Group, 1997). The U.S. is one of the few Western liberal democracies in which political parties, at different institutional levels, are not expected to follow the same policies.Google Scholar
Adams, K. Gibbs, B., “Landmark Reform: An Examination of Support for the Health care Reform Bill among Minority Groups in the 111th Congress,” Nebula (2011) <www.nobleworld.biz/images/Adams_and_Gibbs.pdf>(last visited November 4, 2014): At 2.(last+visited+November+4,+2014):+At+2.>Google Scholar
Blue Dog Coalition, “Mission Statement,” available at <http://bluedog.schrader.house.gov/about/mission.htm>(last visited November 4, 2014).(last+visited+November+4,+2014).>Google Scholar
See Adams and Gibbs, supra note 92, at 1.Google Scholar
Id., at 23.Google Scholar
See Jacobs and Skocpol, supra note 63, at 116117.Google Scholar
Id., at 80.Google Scholar
Id., at 99100.Jacobs and Skocpol discuss the “old issue” of federal spending on abortion.Google Scholar
Iglehart, J. K., “Rallying the Caucus- The Democrats' Struggle for Unity on Reform,” New England Journal of Medicine 64, no.1 (2014) 13.Google Scholar
Executive Order 13535, “Patient Protection and Affordable Care Act's Consistency with Longstanding Restrictions on the Use of Federal Funds for Abortion.”Google Scholar
See Jacobs, Skocpol, , supra note 63, at 57.CrossRefGoogle Scholar
Frakes, V. L., “Partisanship and (Un)compromise: A Study Of The Patient Protection and Affordable Care Act,” Harvard Journal on Legislation 49, no. 1(2012): 135149, at 137-139.Jacobson, P. D. Lauer, J. R., “Health Reform 2010: Incremental Advance or Radical Transformation?” Arizona State Law Journal 42, no. 4(2010): 1277–1291, at 1281Google Scholar
See Blackman, , supra note 1, at 3031.Google Scholar
42 U.S. Code § 1395dd (1986).Google Scholar
Glennerster, H. Lieberman, R., “Toward a Historical Comparison of U.S. and U.K. Health Policy,” Journal of Health Politics, Policy and Law 36, no. 1(2011): 5–33, at 7.CrossRefGoogle Scholar
Calnan, M, “The NHS and Private Health care,” Health Matrix 10, no. 1(2000): 313, at 5–6.Google Scholar
IPSOS Mori, “State of the Nation Poll 2013,” available at <http://www.ipsos-mori.com/researchpublications/researcharchive/3111/State-of-the-Nation-2013.aspx>(last visited November 4, 2014).(last+visited+November+4,+2014).>Google Scholar
Bevan, Anurin, HC Debates, 447, col. 50 9, February 1948.Google Scholar
Opening Ceremony show, viewed worldwide by 900m people.Google Scholar
Fleck, L., “Just Caring: The Ethical Challenges of Health Care Reform in the USA,” in N. Maclean, Distributing Health care: Principles, Practices and Politics (Charlottesville: Imprint 2007): At 141189.Google Scholar
Jones, J. M., “Americans Divided on Repeal of 2010 Health Care Law,” Gallup, February 27, 2012, available at <www.gallup.com/poll/152969/Americans-Divided-Repeal-2010-Healthcare-Law.aspx>(last visited November 4, 2014).(last+visited+November+4,+2014).>Google Scholar
See Fleck, , supra note 113, at 148.Google Scholar
Id., at 144.Google Scholar
Id., at 158.Google Scholar
Maclean, N., “Philosophical Approaches to the Problem of Health Care Distribution," in Maclean, N., Distributing Health Care: Principles, Practices and Politics (Charlottesville: Imprint 2007): At 4190, at 44–46.Google Scholar
Daniels, N., “Justice, Health, and Health Care,” American Journal of Bioethics 1, no. 1(2001): 216.CrossRefGoogle Scholar
Dougherty, C. J., “The Excesses of Individualism,” Health Progress 72, no. 1(1992): 2228.Google Scholar
See Fleck, , supra note 113, at 145.Google Scholar
Hansard, Baroness Hussein-Ece, (Lab) HL, October 12, 2011: Column 1674.Google Scholar
Representative Poe, “Health Care Rationing Could Result in Death Penalty in the United Kingdom,”Congressional Record (June 12, 2009) H6622.Google Scholar
Hansard, Dobson, Frank (Holborn and St Pancras) (Lab) HC, 31 Jan 2011: Column 631.Google Scholar
Represenative Poe, “Nationalized Health Care,” Congressional Record (May 20, 2009) [H5866].Google Scholar
Representative Price, “Dark Day for America,” Congressional Record (March 22, 2010) [H2175].Google Scholar
See Pownall, , supra note 1.Google Scholar
See Glennerster, Lieberman, , supra note 108, at 7.Google Scholar
Hansard, Baroness Williams of Crosby (Lab) HL, 11 Oct 2011: Column 1517.Google Scholar
Barnett, R., “Commandeering the People: Why the Individual Health Insurance Mandate Is Unconstitutional,” New York Journal of Law and Liberty 5, no. 3(2010): 581637.Miller, T. P., “The Individual Mandate: Ineffective, Overreaching, Unsustainable, Unconstitutional and Unnecessary,” American Enterprise Institute (March 23, 2012), available at <http://www.aei.org/paper/health/healthcare-reform/ppaca/the-individual-mandate-ineffective-overreaching-unsustainable-unconstitutional-and-unnecessary/>(last visited November 4, 2014).Google Scholar
State of Florida v. United States Department of Health and Human Services, 780 F.Supp.2d 1256 (2011): At 1286.Google Scholar
Hansard, Howe, Earl, (Con) HL, October 12, 2011: Column 1706.Google Scholar
For a comparison between the ACA and Heritage Foundation Report, see J. Wriggins, “Mandates, Markets, and Risk: Auto Insurance and the Affordable Care Act,” Connecticut Insurance Law Journal 19, no. 2(2012): 275318, at 285–287, and fn14 extensively.Google Scholar
Heritage Foundation, “A National Health Care System for America,” available at <http://www.heritage.org/research/reports/1989/a-national-health-system-for-america>(last visited November 4, 2014).(last+visited+November+4,+2014).>Google Scholar
See Blackman, , supra note 1, at 7.Google Scholar
Hacker, J., “The Road to Somewhere: Why Health Reform Happened or Why Political Scientists Who Write about Public Policy Shouldn't Assume They Know How to Shape It,” Perspective on Politics 8, no. 3(2010): 861–876, at 867.CrossRefGoogle Scholar
See Blackman, , supra note 1, at 24.Google Scholar
Cooper, M., “Conservatives Sowed Idea of Health Care Mandate, Only to Spurn It Later,” New York Times, February 5, 2012.Google Scholar
See Blackman, , supra note 1, at 42. Blackman is critical of Romney for failing to make this argument with any conviction during the 2012 presidential election.Google Scholar
Holan, A. D., “RomneyCare & ObamaCare: Can You Tell the Difference?” available at <www.politifact.com/truth-o-meter/article/2011/may/18/romneycare-and-obamacare-can-you-tell-difference>(last visited November 4, 2014).(last+visited+November+4,+2014).>Google Scholar
See The King's Fund, supra note 1, at 1821.Google Scholar
See The King's Fund, supra note 1, at 6.Google Scholar
See Davies, , supra note 1, at 565.CrossRefGoogle Scholar
See The King's Fund, supra note 1, at 18.Google Scholar
Davies, A. C. L., “Foundation Hospitals: A New Approach to Accountability and Autonomy in the Public Services?” Public Law X, no. 4 (2004): 808828.Google Scholar
See The King's Fund, supra note 1, at 1819.Google Scholar
The Labour Party Manifesto 2010, A Fair Future for All, available at <http://www2.labour.org.uk/uploads/TheLabourPartyManifesto-2010.pdf>(last visited November 4, 2014): At 4:3.(last+visited+November+4,+2014):+At+4:3.>Google Scholar
See Glennerster, Lieberman, , supra note 108, at 58.Google Scholar
Watson, A., Legal Transplants (Georgia: University of Georgia Press, 1993): At 21.Google Scholar
See Glennerster, Lieberman, , supra note 108, at 7.Google Scholar
Id., at 2628.Google Scholar
Id., at 1516.Google Scholar
Id., 2628.Google Scholar
See Balkin, , supra note 14, at 4.Google Scholar
Tolson, J., “The Union As A Safeguard against Faction: Congressional Gridlock as State Empowerment,” Notre Dame Law Review 88, no. 5(2013): 22672287.Easterbrook, F. H., “On Constitutional Changes to Limit Government,” Northwestern University Law Review 102, no. 102(2008): 469–473.Dahl, R. A., How Democratic Is the American Constitution?New Haven: Yale University Press, 2004): At 24–25.Google Scholar
National Federation of Independent Small Business v. Sebelius, 132 S.Ct. 2566 (2012).Google Scholar
House of Lords Select Committee on the Constitution, Reviewing the Constitution: Terms of Reference and Method of Working (HL 2001–2002, 11) (2001)House of Lords Select Committee on the Constitution, Health and Social Care Bill (HL 2010–12, 197) (2010).Google Scholar
Marriott, J. Fletcher, J., “By Any Means Necessary? The Constitutionalisation of Health Care in the United States, United Kingdom and Brazil,” in Allhoff, F. Hall, M., The Affordable Care Act Decision Philosophical and Legal Implications (London: Routledge, 2014): At 5572.Google Scholar
See Balkin, , supra note 14.Google Scholar
Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Ohio, Oregon, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Virginia, Wisconsin, and Wyoming.Google Scholar
Appellate Brief for State Respondents on the Minimum Coverage Provision, 2012 WL 392550 (U.S., Feb. 6, 2012): At 1.Google Scholar
Id., at 1551.Google Scholar
South Dakota v. Dole, 483 U.S. 203 (1987).Google Scholar
See NFIB, supra note 161, at 26042605.Google Scholar
Appellate Brief, Reply Brief for State Petitioners on Severability, 2012 WL 888995 (U.S., March 13, 2012).Google Scholar
See Appellate Brief for State Respondents on the Minimum Coverage Provision, supra note 166, at 18.Google Scholar
Jacobi, T., “Obamacare as a Window on Judicial Strategy,” Tennessee Law Review 80, no. 4(2013): 763849, particularly at 778. This whole article, however, wrestles with how Roberts' judgment recasts the ACA.Google Scholar
Id., at 777, this “reduced the cost.”Google Scholar
Barnett, R., “We Lost on Health Care. But the Constitution Won,” Washington Post, available at <http://www.washingtonpost.com/opinions/randy-barnett-we-lost-on-health-care-but-the-constitution-won/2012/06/29/gJQAzJuJCW_story.html>(last visited November 4, 2014).(last+visited+November+4,+2014).>Google Scholar
See NFIB, supra note 161, at 25892591.Google Scholar
Id., at 25942601.Google Scholar
See Barnett, , supra note 174, at para. 14.Google Scholar
Clark, B., “A Moral Mandate & the Meaning of Choice: Conceiving the Affordable Care Act After NFIB,” St. Louis University Journal of Health Law and Policy 6, no. 2(2013): 267–317, at 285.Cooter, R. Siegel, N., “Not the Power to Destroy: An Effects Theory of the Tax Power,” Virginia Law Review 98, no. 6(2012): 11951250.Google Scholar
See NFIB, supra note 161, at 2579. “Congress may also ‘lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.’ U.S. Const., Art. I, § 8, cl. 1. Put simply, Congress may tax and spend. This grant gives the Federal Government considerable influence even in areas where it cannot directly regulate. The Federal Government may enact a tax on an activity that it cannot authorize, forbid, or otherwise control.”.Google Scholar
Rivkin, D. B.Jr. Casey, L. E. Grossman, A. M., “NFIB v. Sebelius and the Triumph of Fig-Leaf Federalism,” Cato Supreme Court Review 31, no. 1(2011): 31–65, at 32.Google Scholar
§ 1396a(a)(10)(A)(i)(VIII).Google Scholar
See NFIB, supra note 161, at 2605.Google Scholar
Id., at 2634.Google Scholar
Id., at 2602.Google Scholar
Id., at 2604.Google Scholar
Id., at 26022605.Google Scholar
Id., at 2603.Google Scholar
Guerrero, A. A., “Coercion, Political Accountabilkity, and Voter Ignorance: The Mistaken Medicaid Expansion Ruling in NFIB v Sebelius,” Public Affairs Quarterly 27, no. 3(2013): 199214, at 202-203.Google Scholar
See NFIB, supra note 161, at 2608.Google Scholar
See Jacobi, , supra note 172, at 813821.Google Scholar
See NFIB, supra note 161, at 2667.Google Scholar
See Jacobi, supra note 172. Of course, this is partial due to the Dissent believing the ACA's use of the Spending Clause to be far more draconian than any before…. M. Minow, “Affordable Convergence: ‘Reasonable Interpretation’ and the Affordable Care Act,” Harvard Law Review 126, no. 1(2012): 117–153, at 130.Google Scholar
Ewing, K., “The Resilience of the Political Constitution,” German Law Journal 14, no. 14(2013): 2111–2136, at 2135. “The underlying legal principle is the principle of parliamentary sovereignty, which is no more than a legal principle underpinning the idea of popular sovereignty, whereby the people through their elected representatives and accountable government should be free to determine the rules by which they are governed.”.CrossRefGoogle Scholar
Dicey, A. V., Introduction to the Study of the Law of the Constitution, 10th ed. (Basingstoke: Macmillan, 1959).Google Scholar
See House of Lords Select Committee on Constitution-Health and Social Care Bill, supra note 162, at para. 18.Google Scholar
See House of Lords Select Committee on Constitution-Reviewing the Constitution: Terms of Reference and Method of Working, supra note 162, at para. 4.Google Scholar
See House of Lords Select Committee on Constitution-Health and Social Care Bill, supra note 162, at para. 18.Google Scholar
Regina v Secretary of State for the Environment, Transport the Regions [2001] UKHL 23, para. 144. Lord Clyde outlines how removing any link between the Secretary of State or Government Department and Parliament would undermine a convention “rooted in the ideas of democracy and the rule of law”.Google Scholar
Murkens, J. E. K., “The Quest for Constitutionalism in Public Law Discourse,” Oxford Journal of Legal Studies 29, no. 3(2009): 427455, at 432–436.CrossRefGoogle Scholar
This list is far more exhaustive.Google Scholar
See House of Lords Select Committee on Constitution-Health and Social Care Bill, supra note 162, at para. 18.Google Scholar
See House of Lords Select Committee on Constitution-Health and Social Care Bill Follow Up, supra note 162, at para. 8.Google Scholar
See Health and Social Care Act 2012, supra note 162, at s1(3).Google Scholar
See Davies, , supra note 1, at 576.Google Scholar
Barnett, R. E., “No Small Feat: Who Won the Health Care Case (and Why Did So Many Law Professors Miss the Boat)?” Florida Law Review 65 (2013): 1331–1348, at 1337–1338; see House of Lords Select Committee on the Constitution, supra note 162.Google Scholar