Download Affordable Care Act - Constitutional Law - Past Exam and more Exams Constitutional Law in PDF only on Docsity!
CREIGHTON UNIVERSITY SCHOOL OF LAW
CONSTITUTIONAL LAW I §§ A & B FALL SEMESTER EXAMINATION
Professor Fenner Monday, December 6, 2010 Professor Watts
Page 1 of 8
INSTRUCTIONS: THIS IS A CLOSED-BOOK EXAMINATION. BOOKS, STUDY NOTES, OUTLINES, AND ANY OTHER MATERIALS ARE NOT PERMITTED IN THE EXAMINATION ROOM. PLACE YOUR EXAM NUMBER, SECTION, PROFESSOR'S NAME, AND COURSE TITLE ON EACH ANSWER BOOK. IF YOU USE MORE THAN ONE ANSWER BOOK, NUMBER THEM 1 OF 2, 2 OF 2, ETC.
THIS EXAM CONSISTS OF THREE (3) QUESTIONS ON SEVEN (7) PAGES.
READ EACH QUESTION CAREFULLY, AND BE SURE THAT YOU ANSWER THE QUESTION ASKED.
DO NOT GET STUCK ON ONE QUESTION AT THE EXPENSE OF OTHERS. DO NOT GET STUCK ON ONE PART OF THE ANALYSIS OF ONE QUESTION AT THE EXPENSE OF OTHER PARTS.
UNLESS SPECIFICALLY ASKED TO DO SO, DO NOT CONFINE YOUR ANSWER TO ONE ISSUE OR TO ONE PART OF ONE ISSUE JUST BECAUSE YOU BELIEVE RESOLUTION OF THAT POINT MIGHT BE DISPOSITIVE IN ACTUAL LITIGATION.
AVOID RELYING ON CONCLUSORY STATEMENTS. UNLESS OTHERWISE STATED, WE ARE LOOKING FOR ANALYSIS. FOLLOW THROUGH ON YOUR ARGUMENTS, ROOTING THEM IN THE FACTS GIVEN AND THE RELEVANT PRINCIPLES OF CONSTITUTIONAL LAW.
Professor Fenner Monday, December 6, 2010 Professor Watts
Page 2 of 8
QUESTION NO. 1: (40 points; suggested time, 70 minutes)
On March 23, 2010, President Obama signed into law the Patient Protection and Affordable Care Act (hereinafter “the Act”). This question regards a civil action filed in federal court challenging the constitutionality of part of the Act. You are the federal district court judge to whom this action has been assigned.
Medicaid is a federal statutory program, created in 1965 to provide health care for low- income individuals and families, and for certain persons with disabilities. In the United States, Medicaid is the largest source of health-related funding for persons with limited income.
Medicaid is jointly funded by the Federal Government and participating states. State participation in Medicaid is voluntary. Since 1982, when Arizona entered the program, all states have participated. Each participating state administers its own Medicaid program; the Federal Government monitors the state-run programs and establishes requirements for service delivery, quality, funding, and eligibility standards. The Federal Government pays a percentage of the cost of each state’s Medicaid program. In order to get the federal funding for its Medicaid program, a state must conform its program to meet these Federal Government guidelines.
The percentage of the cost of each state’s Medicaid program that is paid by the Federal Government is determined using a formula that generates payment rates that vary from state to state. Under this formula the Federal Government pays at least 50% of the cost of each state’s program. Beyond that, the percent of the cost paid by the Federal Government depends on each state’s respective per capita income. The wealthiest states receive a federal matching payment of 50%. Poorer states receive a larger matching payment. The Texas program, for example, currently costs approximately $20 billion per year. The state pays 40% of the cost and the Federal Government pays 60 %. Medicaid does not pay benefits to individuals directly; Medicaid sends benefit payments to health care providers.
Medicaid funding has become a major budgetary issue for many states. On average, states spend almost 17% of their budget on Medicaid. Somewhere around 50 million people are enrolled in Medicaid.
Loss of personal income and medical insurance coverage in the ongoing recession has resulted in substantial increases in Medicaid enrollment, resulting in heavy pressure on state budgets — budgets already stressed by lower tax receipts.
Professor Fenner Monday, December 6, 2010 Professor Watts
Page 4 of 8
QUESTION NO. 1: (Continued)
not participate. If we don’t participate in Medicaid, what do we do about low-income health care? Do we drop it, or how do we pay for it?”
The plaintiffs in the lawsuit challenging the constitutionality of this part of the Act are 30 states, the attorneys general of most of these 30 states, and the governors of some of them. You are the judge. You are to assume that this lawsuit is justiciable. Do not discuss justiciability. Write your opinion and enter your judgment. As always, be as through in your analysis as you can in the time you have.
Professor Fenner Monday, December 6, 2010 Professor Watts
Page 5 of 8
QUESTION NO. 2: (35 points; suggested time, 60 minutes)
As noted in Question No. 1, on March 23, 2010, President Obama signed into law the Patient Protection and Affordable Care Act (hereinafter “the Act”). Like Question No. 1, this question regards a civil action filed in federal court challenging the constitutionality of yet another part of the Act. You are the federal district court judge to whom this action has been assigned. Unlike Question No. 1, if justiciability is an issue in this case, include it in your discussion.
The Act requires that most businesses provide healthcare coverage for their employees. Small businesses, those with fewer than 50 employees, are exempt from the Act’s mandatory healthcare coverage requirements. Generally, businesses with more than 50 employees will be required to provide coverage as of 2014 or pay a fine of $2,000 per uncovered employee. One business owner commented, “That means those of us who provide health care coverage will no longer, in effect, be subsidizing our competitors who don't — our competitors whose employees rely on public health services and keep showing up at the emergency room.
The Act requires that by the year 2014 all United States citizens and legal residents have qualifying healthcare coverage. That coverage can come from a plan sponsored by an employer, a professional organization, or a union. It can come from Medicaid, Medicare, or another governmental insurance plans. Also, if an individual has to pay more than 8% of his or her income for the cheapest available plan, then that person is exempt from this part of the Act ( i.e. , is not penalized for not having healthcare coverage). There is also an exemption for those who are without coverage for less than three months and for incarcerated individuals.
As of 2014, individuals who are not exempt from this part of the Act and are not covered by a health insurance plan will be required to purchase health insurance or pay a fine. The fine for individuals without healthcare coverage will be phased in. In 2014 the fine will be $95 or 1% of their taxable income, whichever is greater; in 2015 it will be $325 or 2% of taxable income, whichever is greater; in 2016 it will be $695 per year or 2.5% of taxable income, whichever is higher, with a per-family maximum of $2,085. After that, the amount of the fine will be based on cost-of-living adjustments.
The Federal Government contends, and the findings of fact accompanying the Act state that Congress found, that health care with universal (or near universal) coverage must include an individual healthcare coverage mandate because, without such a mandate, a significant number
Professor Fenner Monday, December 6, 2010 Professor Watts
Page 7 of 8
QUESTION NO. 3: (25 points; suggested time, 50 minutes)
In November of 2010, federal law enforcement agents arrested five persons suspected of preparing to carry out terrorist bombings in major U.S. cities. Interrogations revealed the five were inspired by an American citizen, named Fay Gawkes. Gawkes, a nuclear physicist denied tenure at several U.S. universities, had for years authored internet rants denouncing the United States. Intelligence agencies were aware of Gawkes, but she had not been thought previously to have a significant following or the financial means to mount a serious operation against U.S. interests. The suspects further indicated Gawkes was currently based in pirate-controlled regions of Somalia.
Routine intelligence work by U.S. agencies determined the plans for the bombings were highly sophisticated, surprisingly well-resourced, and likely to exact significant, though not catastrophic, human and economic costs to the U.S. However, one highly classified report restricted to the highest levels of the Executive branch and from an extremely sensitive and valuable intelligence source, indicated Gawkes had access to radioactive material from a current U.S. ally. Neither Gawkes nor any of the persons detained has been connected to Al Qaeda or any organization covered by existing statutes authorizing the President to use force, such as the 2001 Authorization to Use Military Force (AUMF).
Advised by his cabinet, the President of the United States (POTUS) determined that Gawkes must be found and that U.S. forces must be authorized to use lethal force against her and her movement. Diplomats and military representatives approached the fragile Somali government to secure approval to search for and use lethal force against Gawkes on Somali territory. Desperate for international legitimacy, the Somalis insisted on a treaty as the means to convey this authority. Convinced of the importance of building allies in the region and bolstering the reputation of the fragile Somali government, POTUS agreed to the treaty format.
Ultimately, the Somali treaty proposal fit well with POTUS’s domestic political circumstances. While POTUS’s political party remained in control of the Senate, control of the House of Representatives had recently passed to the opposition party. It was widely believed the House would not pass measures authorizing operations against Gawkes without significant political trade-offs. Nor would the House be likely to pass an AUMF without the report on Gawkes’ access to radioactive materials, which POTUS made clear he would under no circumstances reveal to anyone outside his closest circle of advisors and cabinet members. Recent leaks of sensitive information have reinforced POTUS’s position on this point. In the end, POTUS reasoned the treaty option offered a means by which to secure at least some form of
Professor Fenner Monday, December 6, 2010 Professor Watts
Page 8 of 8
QUESTION NO. 3: (Continued)
Congressional support and input, without permitting the House to delay or prevent operations critical to U.S. security. POTUS submitted the Somali treaty to the Senate for advice and consent. The Senate rendered its advice and consent in February 2011 but with a binding provision that the treaty would expire in two years or upon the death of Gawkes.
It is now November 2014 and Gawkes is still alive and in Somalia. Although POTUS was narrowly reelected, his party lost control of the Senate. Somalia appears willing to extend the treaty, however, there is widespread consensus that the treaty does not have the required votes in the Senate.
You are an attorney with the Department of Justice Office of Legal Counsel. POTUS has requested a memo outlining the constitutionality of continuing lethal operations against Gawkes without resubmitting the treaty. He is specifically interested in the chances that federal court litigation by Gawkes or her next-of-friend will have in thwarting his operations or compromising the secrecy of his intelligence sources.
