Healthcare, Environmental Law, and the Supreme Court: An Analysis Under the Commerce, Necessary and Proper, and Tax and Spending Clauses
The nation’s healthcare and environmental laws share some common features. Both require individuals to participate in certain markets, are steeped in the principles of cooperative federalism, and attach federal dollars to compliance. Thus, the Supreme Court’s decision in National Federation of Independent Business v. Sebelius has the potential to influence the nation’s federal environmental laws in new ways. First, the logical, if attenuated, extension of the Court’s conclusion that the Commerce Clause does not permit Congress to compel individuals to purchase health insurance suggests some limits on the extent to which Congress may compel participation in certain pollution-control and abatement markets. Second, the Court’s decision that Congress cannot “compel” states to adopt the Medicaid extension under the threat of losing all Medicaid funding suggests further limits on the extent to which Congress may withhold funding from states that do not or cannot implement federal environmental laws. Lastly, the basis for upholding the individual mandate as a tax actually has the potential to provide additional constitutional justification for federal environmental laws should the Court ever reconsider their Commerce Clause foundations. Nonetheless, the Sebelius opinion is unlikely to have a significant impact on federal environmental laws because they can be effectively distinguished from the Court’s healthcare ruling.
The Spending Clause as a Positive Source of Environmental Protection: A Primer
The last third of the Twentieth Century witnessed a veritable explosion of environmental legislation. While some environmental statutes harken back a century, indeed long before the word “environmental” was conceived, most environmental legislation started emerging in the late 1960’s, highlighted by the enactment of the National Environmental Policy Act of 1970 (NEPA). The statutes may be widely known and of broad applicability, such as the Clean Air Act, Clean Water Act, Resource Conservation and Recovery Act (RCRA), Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), NEPA, and the Endangered Species Act, or of specific application, such as the Surface Mining Control and Reclamation Act (SMCRA), or of little public familiarity, such as the Ports and Waterways Safety Act of 1970. As the number of statutes approach the century mark, little thought has been given by Congress to the constitutional basis of the legislation. The underlying assumption is that the Commerce
White-Collar Crime in Modern England: Financial Fraud and Business Morality, 1845-1929.
List of tables Acknowledgments Introduction 1. The new economy: transformation of finance and opportunities for crime 2. The railway mania 3. Banking and credit fraud 4. Stock fraud 5. Company fraud: promotion 6. Company fraud: management 7. Company law and the courts 8. Business ethics and professionalization Conclusion Notes Bibliography Index.