Virginia v. Sebelius

Sat Dec 18 04:54:07 PST 2010

Exactly.  The Commerce Clause power after Raich already has sufficient limiting principles--a meaningful connection between the contested provison and the broad regulatory program, as well as the constraints in the Bill of Rights and the political accountability of Congress.  Even if Raich needs an additional limiting principle, the activity-inactivty distinction is not the answer.  It is neither tied to theory (i.e., the activity-inactivity distinction does not reflect concerns about the national government's intrusion on state government authority), nor does it provide a principle that we can readily apply to answer the individual mandate question.  Two federal judges concluded that the mandate to purchase insurance regulates the decision whether to buy insurance or self-insure of people who actively use the health care system.

The Medicare system does involve a mandate in the way Medicaid or other federal programs do not.  People are required to pay part of their income toward their Medicare benefits and, with limited exceptions, are not permitted to opt out of the system and rely on their own health care coverage.  But the important point about the Medicare example is that Medicare-for-All entails a greater exercise of governmental power than does the Affordable Care Act's mandate to purchase insurance.  It's difficult to see why we would want a constitutional doctrine that would allow Congress to send people into a government-run health care system but deny Congress the ability to send people into a privately-operated health care system.

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David Orentlicher
Visiting Professor, University of Iowa College of Law
Samuel R. Rosen Professor, Indiana University School of Law-Indianapolis
dorentli at iupui.edu
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From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] on behalf of Douglas Laycock [dlaycock at virginia.edu]
Sent: Friday, December 17, 2010 5:51 PM
To: Conlawprof at lists.ucla.edu
Subject: Re: Virginia v. Sebelius

This is much more tightly connected than buy GM.

The requirement that insurers cover pre-existing conditions is plainly a regulation of commerce.  That regulation creates a very specific opportunity for individuals to game the system, refusing to buy insurance until they are seriously sick, then signing up for immediate coverage. The individual mandate attempts to close that specific and individualized problem.

There is nothing comparable in the hypothetical obligation to buy GM cars. An obligation to buy GM helps the bailout by raising revenue. But there is nothing specific to the individual about that revenue; there is no individual opportunity to game the system; there is no remotely comparable collective action problem to be solved.

On Fri, 17 Dec 2010 14:25:07 -0500
 Jonathan Adler <jha5 at case.edu> wrote:
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>

*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.

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David Orentlicher
Visiting Professor, University of Iowa College of Law
Samuel R. Rosen Professor, Indiana University School of Law-Indianapolis
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Douglas Laycock
Armistead M. Dobie Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
     434-243-8546
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