Professor Foley on the Constitutionality of the Affordable Care Act

In the following opinion piece published in the June 30th edition of the Miami Herald, FIU Law Professor Elizabeth Price Foley assesses the Supreme Court decision on the constitutionality of the Affordable Care Act (ACA). The decision, says Foley, undermined the healthcare law even as it upheld it.

Elizabeth Price Foley serves as the Executive Director of the Institute for Justice Florida Chapter. She is also the Institute for Justice Chair in Constitutional Litigation and Professor of Law at Florida International University College of Law.

Healthcare act survives, but it’s a tattered quilt


The Supreme Court delivered a surprising and mixed opinion on the constitutionality of the Affordable Care Act (ACA). The most controversial provision of the Act — the so-called “individual mandate” to buy health insurance — was deemed unconstitutional as a regulation of commerce yet constitutional as a tax. The Act’s mandatory Medicaid expansion — extending coverage to an estimated 16 million poor individuals who can’t afford private insurance — was declared unconstitutional, allowing states to “opt out” of the expansion.

Upholding the individual mandate as a tax was the big shocker. No other lower court had ruled the mandate was sustainable as a tax, and supporters of the law — from President Obama to former House speaker Nancy Pelosi to Senate majority leader Harry Reid — had repeatedly and vigorously insisted that the ACA did not raise taxes.

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