Today Is The Anniversary Of The Affordable Care Act Enactment; Kingston, New York Medical Malpractice Attorney Revisits


On Monday, the Supreme Court will begin to hear arguments on President Obama’s Affordable Care Act. Whether or not you support the law, this will be the next Roe v. Wade in precedence from the Supreme Court. It is absolutely the most important case to be heard this term, and perhaps one of the most important in the past few years and maybe even many more to come.

In fact, people have ALREADY begun to line up outside the Supreme Court to wait in line to hear the oral arguments. In fact, there are at least eight people there already which has problem swelled to higher numbers by now. It is expected that more people will begin to lineup tomorrow, on Saturday, and that is when the line will really grow.

This law is important, not just because it is highly debated between the two parties, but also because it makes sweeping and nearly unprecedented changes in American jurisprudence. Currently, there are 50 MILLION people in this country who don’t have ANY health insurance. The Affordable Care Act will extend coverage to about 30 to 32 million of those people.

The main focus of this lawsuit is no doubt the individual mandate. This is what requires almost every single American adult to maintain health insurance or risk a penalty in the form of a tax. The case has been heard by many Circuit Courts—these are federal courts right below the Supreme Court. Prominently, the Sixth Circuit UPHELD the Affordable Care Act saying it WAS Constitutional, but the extra tax was impermissible. However, the Eleventh Circuit said that the law was UNCONSTITUTIONAL, but said a tax WAS permissible. To add to the confusion, the D.C. Court of Appeals ten said the individual mandate was Constitutional. This is called a Circuit split when the courts cannot agree with themselves.

The way to find this case constitutional is under the Interstate Commerce Clause in Article 1, Section 8, Clause 3 of the Constitution. It allows Congress to regulate commerce between the states. This interstate commerce can be through channels, instrumentalities (people, objects, or vehicles in transit), or anything that substantially affects commerce. Even purely instrastate commerce can be regulated if it has an effect on interstate commerce. Moreover, this effect can be aggregated. Meaning, even if this effect on commerce is somewhat modest, if it can be combined with other actions by other people, that constitutes commerce.

Of course, the tricky part of the test is what does the substantial affects language mean. There are some tests such as if the link between what congress has enacted and what they are trying to do is not too attenuated. Or if not following the act will frustrate a broader, national scheme. Here, the opponents of the Affordable Care Act are arguing that it is regulating inactivity, and those that is not commerce. To the contrary, some proponents argue that inactivity is actually still activity, and most courts have agreed.

Bottom line, PLEASE make sure to watch and follow the oral arguments! This is history in the making that we are all witnessing. It will be the new case that everyone in law school will read their first year. The case we tell to our children and grandchildren, and even their grandchildren. It is GROUND-BREAKING and I hope everyone has some time this weekend to read up on the law and learn more about it to make a decision for your own.

Remember, your source of law shouldn’t be the news, it should be the Constitution! Make your own decisions, know the arguments, and watch how interesting the interplay between public policy, constitutional law, and common-law really are!!!

But what do you think? I would love to hear from you! I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at