How I Would Defend The Health Care Law

At the Supreme Court this week, the Obama Administration will defend its Health Care Reform Law. I have two pieces of advice for the Solicitor General.

  1. State a limiting principle. The Administration has been shockingly blasé about defining exactly why a the health insurance marketplace is unique such that non-participation can be regulated. This led to some scary sentences in the circuit court rulings. From the 11th Circuit:

    From a doctrinal standpoint, we see no way to cabin the government’s theory only to decisions not to purchase health insurance. If an individual’s mere decision not to purchase insurance were subject to Wickard’s aggregation principle, we are unable to conceive of any product whose purchase Congress could not mandate under this line of argument….Ultimately, the government’s struggle to articulate cognizable, judicially administrable limiting principles only reiterates the conclusion we reach today: there are none.

    And from the DC Circuit Court:

    The Government concedes the novelty of the mandate and the lack of any doctrinal limiting principles; indeed, at oral argument, the Government could not identify any mandate to purchase a product or service in interstate commerce that would be unconstitutional, at least under the Commerce Clause

    While the Government did “stress that the health care market is factually unique,” I really think the Government should close the door on this attack by doctrinally stating a limiting principle.

  2. That limiting principle should not focus on how non-participation “impact[s] the cost of health insurance for other Americans” (Kliff) and “raises rates for everyone else” (Cortez). Nationwide price changes does not make the health care market unique. After all, not buying Broccoli lowers aggregate demand and changes the price for everyone else.

    Rather, health care is unique because you can’t avoid participating. We’ve decided, as a society, that hospitals should treat emergencies first, and ask about insurance second. There’s even an amicus brief filed in this case from Massachusetts hospitals because they process uninsured out-of-state skiers who get into accidents and are cared for by the Bay State’s health services. That phenomenon exemplifies the fact that everyone, whether insured or not, is part of the health care marketplace.

    The same is not true for broccoli, and the government needs to make that clear this week.

    (All that said, the High Court may very well take the view that the mandate is a tax to cover the expense of providing automatic emergency services to everyone — if so, this whole discussion would be moot for the time being. Update: Looks like we’ll find out whether the law stands this year.)

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