Understanding the ACA Arguments

[Scarberry, Mark]

1.  I think Richard's question was about boot-strapping. The fed govt requires hospital emergency rooms to treat all comers, and then uses the situation it has created to justify the ACA mandate. If Congress did not have power initially to impose the mandate, can Congress by its own actions create a situation that needs to be resolved by way of a mandate? Of course an alternative way of thinking about this is that in order for EMTALA to work, there needs to be a mandate. If Congress has power to require what EMTALA requires, then perhaps the mandate - at least with regard to requiring emergency room insurance coverage - is covered by the necessary and proper clause.

Here is a fanciful, but perhaps entertaining analogy on the boot-strapping point. Suppose marijuana had never been shipped across state (or national) boundaries, that it does not substitute for other products, and that neither its growing nor its use otherwise affects interstate commerce. (I said it was a fanciful analogy.) Could Congress start shipping marijuana across state lines and then claim it has power under the Commerce Clause to prohibit the growing of marijuana for personal use?]

2.  With regard to Eric's point that if it is a tax then there likely is no jurisdiction (under the tax anti-injunction statute, right?):  En route to dismissing the case, the Court could make the point very clearly that it is a tax. I think almost everyone agrees that if it is a tax, then it is constitutional (except for some people who argue that it is an unapportioned direct tax, I think). The holding that it is a tax, which is necessary for the case to be dismissed for lack of jurisdiction, would be tantamount to upholding the mandate. In any event, such a holding would have the potential to create political accountability for the raising of taxes.

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 Steven Jamar
Sent: Wednesday, March 21, 2012 2:29 PM
To: conlawprof at lists.ucla.edu
Subject: Re: Understanding the ACA Arguments

state level no-fault car insurance
state level mandatory car insurance
unemployment comp
workers comp.

all distinguishable, but all parallel.

On Mar 21, 2012, at 5:13 PM, Richard Dougherty wrote:


I think that Frank has hit the nail on the head here.  What we have is a situation where the government has decided that it would be wrong to not treat someone who showed up for medical treatment.  The consequence of that decision is that it can then turn around and compel everyone to participate in funding the system.  Are there any parallels to this? (not a rhetorical question.)

Richard Dougherty
On Wed, Mar 21, 2012 at 2:11 PM, Frank Cross <crossf at mail.utexas.edu<mailto:crossf at mail.utexas.edu>> wrote:

Actually, Rick, to take care of the free rider problem you would have to declare that someone without health insurance will not receive medical care.  Which is a plausible position but clearly one our society is unwilling to adopt.


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--
Prof. Steven D. Jamar                     vox:  202-806-8017
Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org
Howard University School of Law           fax:  202-806-8567
http://iipsj.com/SDJ/



"God, give us grace to accept with serenity the things that cannot be changed, courage to change the things which should be changed, and the wisdom to distinguish the one from the other."



Reinhold Neibuhr 1943




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