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Chapter 8

Role of the Judicial Branch in Health Policy and Policymaking

Learning Objectives

Understand how the role of the judicial branch in policymaking differs from the roles of the legislative and executive branches

Understand the three core roles played by courts in policymaking: constitutional referee, interpreter, and rights protector

Understand critical structural features of the judicial branch

Understand the concepts of separation of powers, judicial review, and institutional competence

Appreciate the importance of the states’ police power in health policymaking

Define the Constitution’s supremacy clause

Identify the three most common areas of disputes requiring courts to act as referees

Appreciate the importance of NFIB v. Sebelius

The Core Roles of Courts

Constitutional referees: decide whether a branch of government has acted within the scope of its constitutional authority

Interpreters: clarify the meanings of laws

Rights protectors: vindicate or reject the legal or constitutional rights of parties

Roles are not mutually exclusive

Judicial decisions affect public/private sectors

Exhibit 8.3 The Roles of Courts in Policymaking

Structure of the Judicial Branch

Two structural features

The judiciary’s existence in a tripartite system of government

Power is shared among three branches: executive, legislative, and judicial

The judiciary’s existence in a federal system of government

Power shared between the federal and state governments

The Courts in a Tripartite System

Key concepts:

Separation of powers

Judicial review

Institutional competence

The Courts in a Tripartite System

Separation of powers: each branch has distinctive but limited powers

Judicial review: the judicial branch has exclusive power to interpret the Constitution to determine whether an act by a legislative body or an executive official exceeds constitutional limits

The Courts in a Tripartite System

Institutional competence: each branch of government has strengths and weaknesses relevant to policymaking

Legislators formulate new policy

Executives implement and enforce policy

Courts are not suited to formulate/implement policy but instead focus on immediate lawsuits

The Courts in a Federal System

Federalism: Constitution’s division of the authority to govern between the national (federal) government and the governments of the states

States keep all the powers (i.e., to govern and regulate) that the Constitution does not give to the federal government

Example: states’ police power

The Courts in a Federal System

Police power: states’ ability to regulate areas to protect the common good of their citizens

Federal/state division is evident in health policy

Constitution’s supremacy clause: the Constitution (and the federal laws it authorizes) are the supreme law of the land

Functioning of the Courts

What courts do: resolving cases/controversies

Courts function in “reactive mode”

Address legal questions in concrete disputes in an adversarial system

Court systems: two levels of appellate courts for federal and most state court systems

How Courts Decide Cases

Identifying, interpreting, and applying the law

Focus on cases where the law’s answer is uncertain

Identify which law applies, what it means, and how it applies

Apply the law to the facts of a particular case

The conservative influence of precedent

Stare decisis (aka “the power of precedent”): to stand by a decision

Courts should decide legal questions consistently

Courts Acting as Referees

Courts act as referees in three areas:

Questions of the extent of congressional authority

Questions of the power of implementing agencies

Questions of federalism pertaining to federal and state levels of government

Questions of Congressional Authority

Example: Supreme Court’s National Federation of Independent Business (NFIB) v. Sebelius

Challenged the constitutional authority of Congress to enact a requirement that individuals must have health insurance or pay a fine

Court did not formulate or implement policy

Judicial review did validate crucial piece of most sweeping health reform legislation in a generation

Decisions on the validity of an agency’s exercise of authority can affect health policy

Three types of challenges:

Is an agency’s rule/regulation an unreasonable interpretation of what Congress charged it to do?

Does an agency’s promulgation of rules/regulations exceed its delegated authority?

Is the rule/regulation legislative in nature?

Questions of Power of Administrative Agencies

Questions of Federalism

Decisions settling conflict between federal and state authorities can affect health policy

Congress can provide states with financial incentives to pursue policy objectives

Supremacy clause and federal preemption

In power-sharing disputes between federal/state governments, Congress can use the Constitution (supremacy clause) to preempt state laws

Courts referee preemption

Courts Acting as Interpreters

Courts clarify the meaning of laws

Interpretation of the language of laws can determine that language’s policy impact

ERISA preemption and state health reform

ERISA: includes a broadly worded preemption clause, a “savings clause,” and a “deemer clause”

Result: employers or insurance companies argued that a state law could not be enforced against them because it was preempted by ERISA

Judicial Interpretations of Laws

Courts give meaning when:

Legislative language is vague

Parties have enough at stake to litigate meaning

Courts determine whether enforcement will succeed

Downside: Unless the Supreme Court provides a definitive interpretation, judicial interpretations may not be consistent

Courts Acting as Rights Enforcers

Enforcement of common-law and constitutional rights can affect health policy

Enforcement of contract/tort rights

ERISA: preemption of state law claims worked against health plan subscribers who claimed they were harmed by health plan decisions to limit care

ERISA situation prompted legislative fixes (i.e., a Patients’ Bill of Rights) at the state level

Courts Acting as Rights Enforcers

Enforcement of constitutional rights

Private rights against the exercise of governmental authority

Focus on First and Fourteenth Amendments

Supreme Court

Recognizes a level of protections of individual rights related to reproduction and end-of-life decision making

Grants some rights to corporations

Summary

The core roles of courts

Structure of the judicial branch

Functioning of the courts

Courts acting as referees

Courts acting as interpreters

Courts acting as rights enforcers

Review Questions

Discuss the three traditional core roles of courts in the US constitutional scheme of government.

Explain how courts affect health policymaking by acting as constitutional referees.

Explain how courts affect health policymaking by acting as interpreters.

Explain how courts affect health policymaking by acting as rights protectors.

Explain how a court is only allowed to consider a “case or controversy.”

Review Questions

What does it mean for a court to be an interpreter?

What is the impact of stare decisis?

What is the supremacy clause of the US Constitution?

What implications does a tripartite system of government have for the courts?

What implications does a federal system of government have for the courts?

Discuss the concepts of separation of powers, judicial review, and institutional competence.

Applied Science

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