Understanding the ACA Arguments

Michael Masinter masinter at nova.edu
Wed Mar 21 12:36:54 PDT 2012

I like Mark's suggested resolution; the Court could cite Juliet's much  
quoted words from Romeo and Juliet, Act II, scene II.

Michael R. Masinter                      3305 College Avenue
Professor of Law                         Fort Lauderdale, FL 33314
Nova Southeastern University             954.262.6151 (voice)
masinter at nova.edu                        954.262.3835 (fax)

Quoting "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu>:

> I'm still trying to decide what the correct analysis is of the ACA   
> mandate/penalty/tax, but there is a question whether a requirement   
> to buy comprehensive insurance, even including coverage of the small  
>  costs that Rebecca says many people can afford, and going beyond  
> the  emergency care that federal law requires emergency rooms to  
> provide,  is sufficiently tailored to the public purpose of allowing  
> effective  health care regulation. Normally we wouldn't' require  
> much in the  way of tailoring, either under the commerce clause or  
> the necessary  and proper clause, but I wonder whether something  
> more should be  required when the government is requiring a party to  
> enter the  market for a kind of care that goes beyond that which  
> causes the  free rider problem. I think a mandate requiring  
> catastrophic and  emergency room coverage would be more defensible.  
> This is a kind of  market definition issue.
> One reason we have this problem is that there was a failure of   
> political courage. If the penalty had been enacted explicitly as a   
> tax, its constitutionality would not, I think, be in question. I   
> wonder whether courts should use inventive and perhaps unprecedented  
>  approaches to rescue the political branches from their failure to   
> have the political courage to use the powers they clearly have. That  
>  would undermine the political accountability of the political   
> branches.
> Perhaps the Court should uphold the penalty as a tax, label it very   
> clearly as a tax, and let the political branches deal with the   
> political fallout from their having broken their pledges not to   
> raise taxes on anyone but the 1%.
> Mark
> Mark S. Scarberry
> Pepperdine Univ. School of Law
> Malibu, CA 90263
> (310)506-4667
> From: conlawprof-bounces at lists.ucla.edu   
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Zietlow,   
> Rebecca E.
> Sent: Wednesday, March 21, 2012 11:36 AM
> To: 'Rick Duncan'; conlawprof at lists.ucla.edu
> Subject: RE: Understanding the ACA Arguments
> Here's the problem with this argument:  The federal government is   
> not dragging anyone into the healthcare market.  Virtually every   
> single person in this country participates in the health care market  
>  at some point in their lives.  People who choose not to buy health   
> insurance also participate in the health care market when they get   
> sick, they just participate in a different way.  They are required   
> to pay out of their own pocket, which works for small expenses, but   
> often they are unable to pay if they incur unexpected large health   
> care expenses.  When people who participate in the health care   
> market cannot afford to pay for their health care because they lack   
> insurance and the expenses are just too large, their failure to pay   
> costs increases the costs to everyone else who participates in the   
> health care market because health care providers pass their expenses  
>  on to the rest of us.  What you call an individual liberty problem   
> is really a free rider problem.
> The free rider problem is magnified considerably by the fact that   
> health care providers are not allowed to turn away those who can't   
> afford to pay under certain circumstances - that is, when the person  
>  seeking health care is in need of emergency treatment to save their  
>  lives and stabilize their health, under the Emergency Medical   
> Treatment and Active Labor Act of 1986.  EMTALA, which passed with   
> bipartisan support and little opposition, increases he free rider   
> problem because caring for uninsured people in emergency situations   
> is extremely expensive, and hospitals pass the cost on to those of   
> us who are insured.
> All this is to say that it was rational for Congress to use its   
> commerce power to create the individual mandate to solve the free   
> rider problem.
> Rebecca E. Zietlow
> Charles W. Fornoff Professor of Law and Values
> University of Toledo College of Law
> (419) 530-2872
> http://www.nyupress.org/books/Enforcing_Equality-products_id-4830.html
> http://ssrn.com/author=291341
> http://works.bepress.com/rebecca_zietlow/
> http://www.essentiallycontestedamerica.org

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