Virginia v. Sebelius

[Jonathan Adler]

I don’t know what it means to say “the ban on preexisting conditions clauses
cannot work without a mandate to purchase insurance” other than to say it is
less-efficient and more costly than it would otherwise be, and that is
precisely the same in the case of the GM bailout.  Further, given that a)
health care premiums are more costly than car lease payments, and b) a
higher percentage of Americans own a car than have health insurance, I’m not
sure why the GM mandate would seem less of an imposition.



On the other, I don’t think it is accurate to say that “Medicare-for-all”
involves a mandate. It would simply involve the federal government imposing
taxes sufficient for the federal government to purchase the requisite amount
of health care. Calling this a mandate to purchase health insurance is like
calling the interstate highway program a “mandate” to purchase roads or the
military budget a “mandate” to purchase national defense.  Further, whether
or not such a mandate is a greater or lesser imposition on liberty, it is
clearly permissible under existing spending clause doctrine (as would be a
government-owned auto company that gave cars to all Americans).



JHA







------
Jonathan H. Adler
Professor of Law
Director, Center for Business Law & Regulation
Case Western Reserve University School of Law
11075 East Boulevard
Cleveland, OH 44106
ph) 216-368-2535
fax) 216-368-2086
cell) 202-255-3012
jha5 at case.edu
http://www.jhadler.net
SSRN: http://ssrn.com/author=183995


*From:* conlawprof-bounces at lists.ucla.edu [mailto:
conlawprof-bounces at lists.ucla.edu] *On Behalf Of *Orentlicher, David
*Sent:* Friday, December 17, 2010 9:27 AM
*To:* Conlawprof at lists.ucla.edu
*Subject:* RE: Virginia v. Sebelius



There are two ways to show how the GM example fails.  First, as you observe,
one can justify the individual mandate under a *Raich* kind of analysis.  An
individual mandate alone would be unconstitutional, but it passes
constitutional muster as a key component of the Affordable Care Act (the
broad regulatory program).  Specifically, the ban on preexisting conditions
clauses cannot work without a mandate to purchase insurance.  Now the GM
parallel.  Standing alone, a mandate to purchase a GM car would
be unconstitutional.  Could it be justifed as a key component of a GM
bailout?  It's hard to see how such a mandate would make sense in the way a
mandate to purchase health care makes sense.  If Congress required all
Americans to purchase a GM car, it would have to provide subsidies for
lower-income Americans, and that would cost far more than offering tax
incentives to generate sales of a few million GM cars (the mandate to
purchase health care is projected to cost $88 billion a year in subsidies by
2019).  Importantly, political considerations reinforce the constitutional
principle from *Raich*.  Individual mandates are quite unpopular, so
Congress will not impose them unless they really are needed to make the
broader program work (or unless Congress imposes them in a selectively
unfair fashion).



Here's a second way to consider the GM example.  Congress could have adopted
a Medicare-for-All health care system in which everyone would have been
required to purchase government-provided health care coverage.  Instead, it
chose the constitutionally less problematic approach of requiring everyone
to purchase private health care coverage.  That approach is less problematic
because it involves a smaller exercise of governmental power without raising
other constitutional questions (like limiting speech or denying equal
protection).



To make the GM example analogous, you would have to start with the
proposition that Congress could create a government-run automobile company
and then require everyone to purchase a car from the company.  If that were
permissible, then Congress could instead take the less problematic approach
of requiring everyone to purchase a car from a privately-owned automobile
company.  Maybe Congress could and maybe it couldn't require people to
purchase a car from a government-run automobile company, but deciding that
the individual mandate in the Affordable Care Act is valid does not open the
door for a mandate to purchase a car from a government-run automobile
company.



* * * * * * * * * * * * * * * * *
David Orentlicher

Visiting Professor, University of Iowa College of Law

Samuel R. Rosen Professor, Indiana University School of Law-Indianapolis
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