As this Article is being written, the Patient Protection and Affordable Care Act (ACA) is being besieged with two different types of challenges. The first is a Commerce Clause challenge to the individual mandate on the ground that, although the Commerce Clause allows the government to “regulate” the transactions into which people choose to enter, it does not allow the state to force people to enter into disadvantageous transactions against their own will. The second of these challenges deals with the imposition of the Medicaid expansion provisions requiring a state to forego all of its additional Medicaid support unless it is prepared to extend Medicaid coverage, partially at its own expense, to individuals whose income levels put them at 100% to 133% of the federal poverty level.

On August 22, 2009, when then-Speaker of the House Nancy Pelosi was asked by a reporter whether the Patient Protection and Affordable Care Act (PPACA) was constitutional, she answered: “Are you serious? Are you serious?” Two years later, many federal judges, more than half of the States, and a flood of distinguished constitutional scholars have examined the PPACA and found at least part of it to be unconstitutional. The question was indeed serious.

It remains serious today, as a Supreme Court decision on the constitutionality of the PPACA is expected in June 2012. Because the legality of the PPACA has emerged as perhaps the most publicly visible constitutional question since Roe v. Wade, clarity is vital not only for the PPACA itself, but also for general public understanding of the Constitution. Accordingly, our goals in this Article are to provide an opinionated but hopefully fair-minded guide to the constitutional issues of the PPACA and to clarify some misunderstandings that plague both popular and professional discussions of the issues.

The lawsuits challenging Obamacare’s individual mandate have exposed a rift in federalism theory. On one side of the divide is a view that the national government ought to intervene—and ought to be constitutionally permitted to intervene—whenever the states are “separately incompetent” to regulate a particular subject. According to this view, the primary purpose of the Constitution’s enumeration of national powers is to authorize Congress to fix collective action problems among the states. Borrowing from Robert Cooter and Neil Siegel’s article of the same name, I refer to this view as “collective action federalism.” On the other side of the divide is a view that federalism exists for reasons other than efficiency of regulation and particularly that the Founders created the federal structure for the protection of individual liberty. According to this view, there is inherent value to state power that ought to be preserved against national encroachments.

Although international covenants have long recognized a fundamental right to healthcare, and other countries provide healthcare coverage for all of their citizens, rights to healthcare in the United States have been adopted only grudgingly, and in a manner that is inherently unstable. While a solid right to healthcare would provide much benefit to individuals and society, the political and judicial branches of the U.S. government have granted rights that are incomplete and vulnerable to erosion over time.

Unfortunately, enactment of the Patient Protection and Affordable Care Act (ACA) does not change these fundamental weaknesses in the regime of U.S. healthcare rights. Millions of Americans will remain uninsured after ACA takes full effect, and rather than creating a more stable right to healthcare, ACA gives unstable rights to more people. As a result, even if ACA survives its constitutional challenges, access to healthcare still will be threatened by the potential for attrition of the rights that ACA provides.

More than twenty-four million people in the United States are considered limited English proficient (LEP), and numerous studies have documented the consequences of communication barriers in healthcare. These consequences include: patients’ inability to become engaged and involved in their care; the absence of crucial information—including cultural information—essential to healthcare quality; risks to patient safety arising from the misunderstanding of physician instructions; and ethical and legal lapses stemming from the absence of informed consent. Addressing healthcare rights necessarily entails coming to grips with how to facilitate communication and the exchange of information between the healthcare system and an increasingly diverse patient population.

The history of language access services in healthcare is grounded in two distinct bodies of law: the law of informed consent and civil rights law. Modern notions of informed consent law—which have their roots in the Nuremberg trials of the late 1940s—would recognize a cause of action in tort where a lack of adequate communication creates a barrier to an LEP patient's ability to consent to care. In modern healthcare law, the ability of patients to affirmatively give informed consent to treatment is considered a fundamental element of healthcare quality.

Proponents of the 2010 Patient Protection and Affordable Care Act (PPACA) justify the Act's mandate that uninsured individuals either purchase a minimally defined health insurance policy (“Maintain Minimum Essential Coverage”) or pay a fine, as a necessary and proper exercise of Congress's express constitutional power to regulate interstate and foreign commerce. The United States Supreme Court will decide the correctness of that highly debatable position during its spring 2012 session.

Assuming, without by any means predicting, that the validity of all parts of the PPACA—including the individual insurance mandate—is upheld, the Court's (likely multiple) opinions will constitute a major development in the evolution of American constitutional jurisprudence, even if Congress subsequently repeals specific sections of the legislation. Several commentators have expressed concern about the ramifications of a judicially validated PPACA for attempts by the government, especially through the mechanism of Comparative Effectiveness Research (CER), to limit or ration particular forms of potentially beneficial medical care for some or all patients.

The Patient Protection and Affordable Care Act (ACA or the “Act”) litigation presents a standing paradox. In the current posture, it appears that states lack standing to challenge the federal law on behalf of individuals, while individuals possess standing to challenge the federal law on behalf of states. This Article contends that there is no principled reason for this asymmetry and argues that standing doctrine should apply as liberally to states as to individuals, assuming states allege the constitutional minimum requirements for standing and especially where the legal challenge turns on the allocation of power between the federal government and the states. While states may have no greater claim to judicial review of federal laws than individuals, they should not have any less.

The Supreme Court will not have to reach this particular procedural conundrum to decide the merits of the Florida lawsuit on which it granted certiorari because the particular constellation of plaintiffs before the Court covers all fronts.

When the government decides to assume a major role in providing and paying for healthcare, the government also has to decide exactly what constitutes appropriate, reasonable, or essential healthcare under its program. Congress, of course, recognized this necessity when it passed the Patient Protection and Affordable Care Act (ACA), and the statute itself provides authority to the Secretary of Health and Human Services (HHS) to determine the “essential health benefits” that must be covered under the ACA beginning in 2014, both by insurers offering plans within governmentally sponsored exchanges and on the individual and smallemployer markets outside the exchanges. In a decision that was hailed as both “politically astute” and problematic for the goals that the ACA itself was supposed to accomplish, HHS shunted off the task of defining the term “essential health benefits” to the individual states.

This Article analyzes the initial efforts of the Federal Department of Health and Human Services (HHS) to implement the essential mental health and substance use disorder services benefit required by section 1302(b)(1)(E) of the Affordable Care Act (ACA) and proposes the adoption of a comprehensive and specific essential mental health and substance use disorder benefit set. At a minimum, the benefit set should cover medically necessary and evidence-based inpatient and outpatient mental healthcare services, inpatient substance abuse detoxification services, inpatient and outpatient substance abuse rehabilitation services, emergency mental healthcare services, prescription drugs for mental health conditions, participation in psychiatric disease management programs, and community-based mental healthcare services.

This Article builds on three previous articles that have proposed reforms of federal and state mental health parity laws and mandatory mental health and substance use disorder benefit laws.

The Patient Protection and Affordable Health Care Act (“Act”), which mandates all individuals to have health insurance and “penalizes” those who do not, is unconstitutional for five well-documented and well-argued reasons:

1. 1. The mandate for individuals to purchase healthcare (“Mandate”) exceeds Congress's power to regulate commerce among the several states under the Commerce Clause of article I, section 8, clause 3 of the U.S. Constitution.

2. 2. The penalty imposed on individuals who fail to honor the Mandate (“Penalty”) is an unconstitutional direct tax because it is unapportioned, as required by article I, section 1, clause 3, and by article 1, section 9, clause 4.

3. 3. The Penalty does not satisfy the Necessary and Proper Clause of article I, section 8, clause 18.

4. 4. The Act violates the Tenth Amendment reservation of unenumerated powers to the states and to the people.

5. 5. The mechanical, procedural aspects of the Penalty violate the due process guarantee in the Fifth Amendment.

President Obama entered the White House with a clearly defined goal: expanding healthcare coverage to all Americans. He marketed this goal to the public and Congress as a “moral imperative,” as well as a necessary means to achieving a “more effective and efficient health care system.” Yet as reform proceeded, it became clear that the latter was the preeminent, if not only, goal of most legislators. While the President's rhetoric was essential in drumming up support for historic reform, it reflects an appreciation for human rights that many Americans do not share. As Congress focused on the failings of the most expensive healthcare system in the world, it became evident that the right to health (a fundamental and nonderogable human right under international law) would not be a factor in the new legislation.

This defining characteristic of reform may, paradoxically, prove invaluable in preserving the law. In challenging the Patient Protection and Affordable Care Act (ACA), litigators, politicians, and judges have focused on principles of federalism, asserting that Congress has overstepped its authority in enacting such landmark legislation. As opponents hone in on the insurance mandate and Medicaid expansion, they condemn the unprecedented expansion of coverage that moves America closer to realizing a universal right to health. The government has an extremely strong argument that these provisions are properly grounded within Congress’s authority to regulate commerce or within its taxing and spending power, although legal scholars differ on the Supreme Court’s projected interpretation of the matter. Still, the law’s basis in economic regulation, and not rights, will, if anything, prove to be its saving element.

On March 23, 2010, President Barack Obama signed the Patient Protection and Affordable Care Act (ACA) into law, resulting in the most sweeping reform of the healthcare marketplace and one of the largest expansions in access to healthcare in American history. A key component to both restructuring the healthcare marketplace and improving access are the health insurance exchanges contained in the ACA. Today, individual and small group purchasers have difficulty finding affordable health insurance in the marketplace because they lack the tools to gather information about plans and because they lack the bargaining power to negotiate for affordable rates the way large purchasers can. In conjunction with the individual mandate, the health insurance exchanges aim to solve inefficiencies in the current marketplace by creating a centralized venue to connect insurers with individual and small business purchasers. Thus it both creates a place for insurers to readily find customers, who are now guaranteed to be there because of the individual mandate, and provides a place for customers to shop for insurance.