Understanding the ACA Arguments

[Zietlow, Rebecca E.]

I agree with Mark that the real issue is whether there is something about this case that warrants the Court's adoption of a new tailoring requirement for this type of case.  With all due respect, Mark is still asking the Court to make a policy decision - whether the mandate goes beyond what is necessary to solve the free rider problem.  This is an issue of policy which is best suited to be decided by Congress, and not the unaccountable federal courts.

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
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Wednesday, March 21, 2012 2:57 PM
To: conlawprof at lists.ucla.edu
Subject: RE: Understanding the ACA Arguments

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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