Samuel Alito on Health Care

Supreme Court Justice (nominated by Pres. George W. Bush 2005)


Individual mandate is unconstitutional even with $0 tax

The Court's decision in CA v. TX 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 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 action that is causally connected to the plaintiffs' injury."

SCOTUS outcome:Opinion authored by Breyer; joined by Roberts; Thomas; Sotomayor; Kagan; Kavanaugh; and Barrett. Alito and Gorsuch dissented, [declaring the] individual mandate "clearly unconstitutional"

Source: Vox.com on 2021 SCOTUS ruling:ˇ"California v. Texas" , Jun 17, 2021

Concurs that ObamaCare "state exchanges" cannot be federal

The Supreme Court upheld one of the main tenets of ObamaCare, ruling 6-3 that millions of Americans are entitled to subsidies be distributed through both federal and state channels. The Supreme Court agreed.

In dissenting, Justice Antonin Scalia-- joined by Justices Samuel Alito and Clarence Thomas--said the majority erred in reading the law's language describing an "Exchange established by the State" to mean "Exchanges established by the State or the Federal Government."

"That is of course quite absurd, and the Court's 21 pages of explanation make it no less so," Scalia wrote in his own 21-page opinion. "Words no longer have meaning if an Exchange that is not established by a State is 'established by the State,'" he said. "It is hard to come up with a clearer way to limit tax credits to state Exchanges than to use the words 'established by the State.' It is hard to come up with a reason to include the words 'by the State' other than the purpose of limiting credits to state Exchanges."

Source: US News&World Report on 2015 SCOTUS decision King v. Burwell , Jun 25, 2015

Key question: is ObamaCare a tax or a penalty?

On an anti-ObamaCare case ], on the 1st day of oral arguments on March 26, 2012, the Supreme Court heard arguments on the Tax Anti-Injunction Act (AIA). The states argued that the AIA didn't apply because the mandate penalty wasn't a tax, and the AIA applied to TAXES, not penalties. The federal lawyers argued that the AIA didn't apply in these cases because the mandate penalty wasn't a tax for purposes of the AIA but that is was a tax for Constitutionality purposes.

Justice Samuel Alito chastised the lawyer for the federal government, noting that "today you are here telling us it's not a tax. But tomorrow you're going to come right back in here and tell us it is a tax. Which is it?" The federal lawyer stumbled as he tried his best to argue both ways at the same time. Justice Ruth Bader Ginsburg seemed just as uncomfortable with the government's argument.

Source: Last Line of Defense, by Ken Cuccinelli, p.126-127 , Feb 12, 2013

ObamaCare's individual mandate is unconstitutional

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

OpEd: sympathetic to labeling ObamaCare unconstitutional

The Federalist Society is a powerful network of influential conservative legal scholars. So not only is it likely that Sen.Mitch McConnell will be able to count on conservative legal experts to help Republicans make the case for why health care reform is unconstitutional, but he will be sure to find sympathetic judges at all levels, including Supreme Court justices like John Roberts, Samuel Alito, Antonin Scalia.
Source: Amanda Terkel in Huffington Post, "Mitch McConnell" , Nov 18, 2010

Ok to refuse medical treatment; but assisted suicide not ok

SEN. FEINSTEIN: [With regards to Terry Schiavo], what do you believe the role of the federal courts should be in the arena of end-of-life decisions?

ALITO: This is obviously one of the most sensitive issues that comes up in our legal system. And with the advances in medical technology, this is going to be a very tough issue for an awful lot of people. In the Cruzan case, the court assumed that there is a constitutional right to refuse medical treatment that a person doesnít want. If somebody gives you medical treatment and you say I donít want it, and they perform an operation on you, thatís a battery under the common law and you can be sued. And then in Washington v. Glucksberg, they addressed the issue of whether there was a constitutional right to assisted suicide, and they concluded that there was not. But they recognized that these were issues that were on the cutting edge of medical technology, on which more empirical evidence might become relevant in the future.

Source: Sam Alito 2006 SCOTUS Senate Confirmation Hearings , Jan 11, 2006

Federal government decides insurance issues, not states.

Justice Alito joined the dissent on Empire HealthChoice Assurance v. McVeigh on Jun 15, 2006:

A 5-4 Court decided that federal jurisdiction does not extend to controversies over insurance contracts under the Federal Employees Health Benefits Act. Thus, state courts are the proper venue for contract disputes arising between federal employees and insurance companies, which may result in inconsistent outcomes across states.

Empire Healthchoice Assurance sued the estate of a deceased federal employee who received $157,000 in insurance benefits as the result of an injury. The wife of this federal employee had won $3.2 million in a separate lawsuit; Empire Healthchoice claimed reimbursement because the beneficiary was compensated for the same injury by a third party.

HELD: Ginsburg, joined by Roberts, Stevens, Scalia, and Thomas

The Court ruled that under the Federal Employees Health Benefits Act, state courts, not federal courts, are the proper forum for a contracts lawsuit by a plan administrator seeking reimbursement for medical costs. Empire, the Court ruled, had not demonstrated a "significant conflict between an identifiable federal policy or interest and the operation of state law."

DISSENT: Breyer, joined by Kennedy, Souter, and Alito

The dissenting opinion asserted that the dispute should have been deliberated at the federal level because, in part, "there is little about this case that is not federal."


Judge Sotomayor, then on the Second Circuit prior to her Supreme Court nomination, found no federal jurisdiction because Empire failed to show that New York state law "significantly conflicts" with federal interests. The Supreme Court affirmed Sotomayor's decision.
Source: Supreme Court case 06-MCVEIGH argued on Apr 25, 2006

Federal law pre-empts state laws on generic drug warning.

Justice Alito joined the Court's decision 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: Samuel Alito 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