Understanding the ACA Arguments

Thu Mar 22 06:23:00 PDT 2012

If the goal is to protect the public against an expansive federal power to impose purchase mandates, striking down the individual mandate will not serve that purpose. All it will do is protect the public against mandates to purchase a few kinds of insurance that, like health care insurance, must be purchased in advance of an economic transaction.

Of course, a ruling against the mandate would mean that Congress could not force us to go out and buy vegetables or a GM car. But Congress still would have the power to require grocery stores and restaurants to include vegetables with every sale, and it still would have the power to require service stations to sell gasoline only to owners of GM vehicles. And if the Supreme Court wanted to curtail the ability of Congress to regulate the terms of economic transactions, I'm not sure how it would draw lines between requiring sales of seat belts and catalytic converters with every sale of a car and requiring sales of vegetables with every sale of food (with say an exception if you could prove you had already bought vegetables that day or week).

In any event, history tells us that Congress has exercised considerable self-restraint when it comes to purchase mandates. As the 11th Circuit pointed out, Congress never has required homeowners to purchase flood insurance, even as a condition of purchasing a home in a flood plain, which the Constitution clearly would allow. The case that courts are needed to protect us from being overwhelmed by purchase mandates has not been made.

* * * * * * * * * * * * * * * * *
David Orentlicher, MD, JD
Samuel R. Rosen Professor of Law
Co-Director, Hall Center for Law and Health
Indiana University Robert H. McKinney School of Law

Adjunct Professor of Medicine
Indiana University School of Medicine

dorentli at iupui.edu

________________________________
From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] on behalf of Martin Jay Sweet [m-sweet at northwestern.edu]
Sent: Wednesday, March 21, 2012 2:52 PM
To: Zietlow, Rebecca E.; 'Rick Duncan'; conlawprof at lists.ucla.edu
Subject: RE: Understanding the ACA Arguments

But claiming it is rational, doesn’t really mean that much – does it? Consider whether instead of the Obama “cash for clunkers” – the federal government just required that every older vehicle had to be turned in to the authorities. Given the very real issues of emission pollution, going after the free riders who want to pollute seems somewhat analogous (and, well, rational). Why the government did a cash incentive program was partly because of the limits of federal government power – and the very real problem of politics. And that’s what we have here. It would have been pretty easy (constitutionally) to just call the individual mandate a tax, and just about everyone would concede they could have the program. But they didn’t have enough votes in Congress if it was called a tax. So they call this commerce. Where the challengers to the PPACA will likely stake their real ground at oral argument is on the question – if Congress can pull just call it commerce, what can’t they do? I think it will be less of a pure commerce issue, than one of legislative/judicial determinations of the boundaries of federal power.

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Martin J. Sweet
Visiting Assistant Professor
Department of Political Science
237 Scott Hall
601 University Place
Northwestern University
Evanston, Illinois 60208
http://martinjsweet.com<http://martinjsweet.com/>
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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 1:36 PM
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
From: conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu> [mailto:conlawprof-bounces at lists.ucla.edu]<mailto:[mailto:conlawprof-bounces at lists.ucla.edu]> On Behalf Of Rick Duncan
Sent: Wednesday, March 21, 2012 2:16 PM
To: conlawprof at lists.ucla.edu<mailto:conlawprof at lists.ucla.edu>
Subject: Re: Understanding the ACA Arguments

Just to be clear, the Taken analogy is based upon someone who does not wish to enter a market being forced--literally dragged-- into that market.

I am not comparing the individual mandate to sex slavery; just to someone who desires to stay out of a market being dragged off into that market. The long arm of the law reaching into Citizen Doe's private choices about health insurance--that is the point of the analogy, which, though colorful, is spot on.

Prof. Rick Duncan (Nebraska Law)

See my recent paper on The Tea Party, federalism, and liberty at:
   http://ssrn.com/abstract=1984699

"And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform" --Dick Gaughan (from the song, Thomas Muir of Huntershill

--- On Wed, 3/21/12, Doug Edlin <edlind at dickinson.edu<mailto:edlind at dickinson.edu>> wrote:

From: Doug Edlin <edlind at dickinson.edu<mailto:edlind at dickinson.edu>>
Subject: Re: Understanding the ACA Arguments
To: conlawprof at lists.ucla.edu<mailto:conlawprof at lists.ucla.edu>
Cc: nebraskalawprof at yahoo.com<mailto:nebraskalawprof at yahoo.com>
Date: Wednesday, March 21, 2012, 10:04 AM
I expect many list members already saw Judge Wilkinson's recent Op-Ed:   http://www.nytimes.com/2012/03/12/opinion/cry-the-beloved-constitution.html?_r=1&scp=3&sq=j%20harvie%20wilkinson&st=cse

Judge Wilkinson was nominated by Ronald Reagan.

Best,

Doug

On 3/21/2012 12:37 PM, Rick Duncan wrote:
Thanks for the link.

In class, I like to use a scene from the recent Liam Neeson movie, Taken, to illustrate the difference between Wickard/Raich and Obamacare's individual mandate. In the precedents, the farmer/grower was engaged in some productive activity--growing wheat or weed for personal use or use on the farm. However, under Obamacare individuals want nothing to do with health insurance and are dragged into the market by government.

It is like that scene from Taken where Liam Neeson's daughter is hiding under the bed from the kidnappers who want to auction her off in the sex slave market. She is hiding, curled up under the bed, and just when we think she has escaped we see two hands reach under the bed, grab her by the legs, and drag her off to be sold.

Similarly, under Obamacare, we have Citizen John Doe curled up under his bed screaming "but I don't want to buy insurance, please leave me alone," when suddenly the long arm of Leviathan reaches under the bed and drags poor John off to the health insurance market.

I am not sure this is an argument for court, but it sure helps students see that Obamacare is a bridge well past the facts of Wickard and Raich.

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--

Douglas E. Edlin

Associate Professor

Department of Political Science

Dickinson College

P.O. Box 1773

Carlisle, Pennsylvania 17013

717.245.1388

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