Elena Kagan on Health Care



Individual mandate is constitutional even with $0 tax

The Court's decision in California v. Texas concludes that the plaintiffs trying to undo ObamaCare had no business being in court. The case was brought by Texas officials who object to ObamaCare, centered on the law's individual mandate [which] required most Americans to either obtain health insurance or pay higher taxes. In 2017, Congress amended ObamaCare to zero out this tax. The Texas plaintiffs claimed that this zeroed-out tax is unconstitutional and also claimed that the entire law must be declared invalid if the zero dollar tax is stuck down.

In a 7-2 ruling, the Court ruled that no one is allowed to bring suit to challenge a provision of law that does nothing: "The IRS can no longer seek a penalty; there is no possible Government action that is causally connected to the plaintiffs' injury."

SCOTUS outcome:Authored by Breyer; joined by Roberts; Thomas; Sotomayor; Kagan; Kavanaugh; and Barrett. Thomas also wrote a concurring opinion. Alito and Gorsuch dissented.

Source: Reuters on 2021 SCOTUS ruling:"California v. Texas" , Jun 17, 2021

Uninsured engage in commerce by raising others' premiums

Kagan seemed to advance the government's notion that the mandate was just the ordinary regulation of a national health care market, and that since we were all in it, or would be in it, it was all just a question of timing--of when the federal government could apply its regulation. Justice Kagan and Justice Ginsburg repeatedly said that people who decided not to buy health insurance had no economic impact on an existing stream of economic activity. Justice Kagan said, "The aggregate of all these uninsured people are increasing the normal family premium, Congress says, by a thousand dollars a year. Those people are in commerce. They're making decisions."

In other words, by doing nothing, people who chose not to buy health insurance were allegedly causing economic hardship for other people, because those who bought insurance had to pay increased premiums to cover uninsured people who couldn't pay their medical bills.

Source: Last Line of Defense, by Ken Cuccinelli, p.131 , Feb 12, 2013

Without individual mandate, ObamaCare is unsustainable

Severability: If the Individual Mandate is Struck Down, Can the Rest of the Law Stand?

Justice Kagan noted that if the court found the mandate unconstitutional, but left in place the provision allowing preexisting conditions and other provisions that depended on the mandate, the whole health insurance system would be unsustainable. She said: "Once you say that the insurance companies have to cover all the sick people and all of the old people, the rates climb. More and more young people and healthy people say, why should we participate, we can just get it later when we get sick. So they leave the market, and the whole system crashes and burns, becomes unsustainable. "

That was one of the few points she made with which I agreed.

Source: Last Line of Defense, by Ken Cuccinelli, p.134-135 , Feb 12, 2013

Upheld ObamaCare in Sebelius case, despite recusal concerns

The biggest controversy by far over Justice Kagan's role in recusals was her decision last Term not to recuse herself in the Affordable Care Act case, National Federation of Independent Business v. Sebelius. Critics, mostly partisan conservatives who questioned the constitutionality and wisdom of the health care law, argued that she was required to recuse herself from the case because she had played a role in the Justice Department's decisions about how to defend the Affordable Care Act in the federal courts. Partisan liberals made similar claims that Justice Thomas should recuse because of positions taken by his wife. In response, Justice Kagan's defenders said that she was not required to step aside because she had not played a significant role in those decisions. The Court upheld the law on June 28, with Justice Kagan joining the Chief Justice and Justices Ginsburg, Breyer, and Sotomayor in the majority. Notably, by the time of the decision, all of the recusal furor had died down.
Source: ScotusBlog.com, "SCOTUS for law students" , Oct 9, 2012

ObamaCare's mandate is constitutional under Commerce Clause

In National Federation of Independent Business v. Kathleen Sebelius (Obama's Secretary of Health and Human Services), the Supreme Court upheld most of ObamaCare, including the individual mandate, which requires that most Americans buy health insurance or pay a fee. The court ruled 5-4 that the individual mandate is constitutional under Congress's taxing authority. The Court also upheld the expansion of Medicaid, the government's health insurance program for low-income Americans, but limited the provision, saying states will not necessarily lose their funding if they choose not to expand the program.

Opinions: Roberts wrote majority opinion; Ginsburg, Sotomayor; Breyer, and Kagan concurred in part (noting that the Commerce Clause alone justifies ObamaCare's mandate); Scalia, Kennedy & Alito dissented (on grounds that the individual mandate was unconstitutional); Thomas separately dissented (on grounds that the Commerce Clause is interpreted too broadly).

Source: InfoPlease.com on 2012 SCOTUS docket #11-393/398/400 , Jun 28, 2012

Helped plan legal defense of ObamaCare

Conservative interest groups and Republican lawmakers want Justice Elena Kagan off the health care case, complaining that the Justice Department has not fully revealed Kagan's involvement in planning the response to challenges to the law.

Kagan was Obama's solicitor general before he nominated her last year to take the seat of Justice John Paul Stevens. She testified during her confirmation hearing in 2010 that she "attended at least one meeting where the existence of the litigation was briefly mentioned, but none where any substantive discussion of the litigation occurred." Kagan left the administration in August, about five months after the health care overhaul became law. She said she would not take part in cases in which she "participated in formulating the government's litigating position."

Conservatives point to Kagan's email exchange about an upcoming vote on the legislation in the House of Representatives. "I hear they have the votes, Larry!! Simply amazing," she said.

Source: Mark Sherman, Associated Press in Salt Lake Tribune , Nov 26, 2011

Broad Congressional power for commerce, like ObamaCare

In a case that may affect the healthcare overhaul, the justices vote 7 to 2 to give Congress 'broad authority' to enact all laws that are 'necessary and proper' to carrying out its constitutional power. The Supreme Court set a potential blueprint Monday for upholding the recently enacted healthcare law and its mandate that all Americans have insurance, saying Congress has a "broad authority" to pass laws that are "rationally related" to its constitutional aims.

The case was the first clear test of federal authority to come before the high court in five years, and was argued just as Congress neared final passage of the broad healthcare law. In January, Solicitor General Elena Kagan, now President Obama's nominee to the court, appeared before it to defend a broad reading of congressional power in the Comstock case.

Source: David Savage, Los Angeles Times, "Sex offendors" , May 15, 2010

Congress did not intend disparate result on generic drugs.

Justice Kagan joined the concurrence on PLIVA v. MENSING on Jun 23, 2011:

Plaintiffs were prescribed a brand name drug for which pharmacists substituted a generic drug, which the FDA had approved under the process federal law authorized for generics. Plaintiffs were diagnosed with a disorder linked to the extended use of the drug. They filed state tort law claims against the manufacturers of the generics, alleging failures to label their products with a warning of known risks. The generics carried the same warnings as the brand name and, the manufacturers argued, since federal regulations required the generics to have the same warnings as the brand name, compliance with a state law requiring different warnings was impossible.

HELD: Delivered by Thomas; joined by Roberts, Scalia, Kennedy & Alito

Generic manufacturers were forbidden to change unilaterally the label warning of the drug. Plaintiffs argued that the manufacturers could have complied with both state and federal law by following the process federal regulations set out of proposing stronger warnings to the FDA (which they did not), after which the FDA might have decided to negotiate a label change with the brand name manufacturer that the generic manufacturers would have been required to adopt. The Court found that
  1. state law required a stronger warning
  2. federal law prohibited a stronger warning, and
  3. requesting the FDA to authorize a stronger warning
was not enough to comply with state law requiring a stronger warning. Federal and state laws conflict when it is impossible to do what both laws require. It was impossible for the generic manufacturers to comply with both laws. Since federal law preempts conflicting state law, the manufacturers may not be sued on these state law claims.

DISSENT: Sotomayor dissents; joined by Ginsburg, Breyer & Kagan

Congress could not have intended the result that brand name drug consumers may sue manufacturers for failure to warn, while the much larger class of generic drug consumers may not.
Source: Supreme Court case 11-PLIVA argued on Mar 30, 2011

Other Justices on Health Care: Elena Kagan on other issues:
Samuel Alito(since 2006)
Amy Coney Barrett(since 2020)
Stephen Breyer(since 1994)
Neil Gorsuch(since 2017)
Ketanji Brown Jackson(nominated 2022)
Elena Kagan(since 2010)
Brett Kavanaugh(since 2018)
John Roberts(since 2005)
Sonia Sotomayor(since 2009)
Clarence Thomas(since 1991)

Former Justices:
Merrick Garland(nominated 2016)
Ruth Bader Ginsburg(1993-2020)
Anthony Kennedy(1988-2018)
Antonin Scalia(1986-2016)
John Paul Stevens(1975-2010)
David Souter(1990-2009)
Sandra Day O'Connor(1981-2006)
William Rehnquist(1975-2005)

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Page last updated: Mar 21, 2022