Another Problem with Challenges to the Individual Mandate

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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7 Responses

  1. amused says:

    we already have a fundamental right to health care. It’s called going to the emergency room for free.

    That is absolutely false. Emergency rooms are required to provide service to all, but they are *not* required to provide service for free. You will be charged for the service, and you will be expected to pay. If you don’t pay, the hospital has the right to start collection proceedings, and they routinely do so; they will sell your debt to collection organizations; they will mess your credit score, and you may end up in bankruptcy if you don’t pay your emergency room bill. Now, many hospitals have charitable funds that cover some of these bills for the uninsured, so many people end up not paying, but that’s charity, not government’s mandate.

    Do not confuse the requirement to provide service with the requirement to provide *free* service. The US does *not* give its citizens a fundamental right to health care.

  2. anon says:

    Is another difference that military service, taxes, and juries are all mentioned in the Constitution?

  3. Gerard Magliocca says:


    So I see two flaws with my argument in the post. One is the point that the other “compelled” actions are specifically mentioned in the text while health care is not. True, though I’m not sure how significant that is. The other is that the individual mandate sweeps more broadly than the ER right, so people are being made to pay for things that they are not entitled to get. Thus, you could say that the mandate as currently set is invalid, though a narrower one might survive scrutiny.

    I should add that it is true that my use of the word “free” to describe ER care is too simplistic, though I don’t agree with everything that the first comment says.

  4. Frank Pasquale says:

    EMTALA does effectively leverage US government funding of hospitals to require those with ERs to provide care regardless of the patient’s ability to pay. At least one provider in an ER challenged that requirement as a taking:

    As the court responded, “Governmental regulation that affects a group’s property interests ‘does not constitute a taking of property where the regulated group is not required to participate in the regulated industry.’ . . . Only hospitals that voluntarily participate in the federal government’s Medicare program must comply with EMTALA. . . [P]hysicians only voluntarily accept responsibilities under EMTALA if they consider it in their best interest to do so.”

    I don’t know exactly how this type of reasoning will bear on the individual mandate controversy.

  5. Gerard Magliocca says:


    Hmm . . . that’s interesting. It would seem to cut in favor of the claims against the mandate, though perhaps only slightly.

    Sorting all of this out before I write the symposium piece on this for FIU is going to be tough. I’m still not sure where I come down on this.

  6. ‘Is another difference that military service, taxes, and juries are all mentioned in the Constitution?”

    Military service is. The draft most assuredly is not, and it’s use during the Civil war was considered highly controversial for that reason.

    It should also be noted that, free or not, the only treatment emergency rooms are required to provide is to stabilize your condition. Restoring you to health is not included, and even conditions which might kill you in the near future may only result in an admonition to seek medical treatment, if you’re capable of living long enough to go somewhere else to obtain it.

    It’s not just the “free” part that’s an exaggeration, IOW.

  7. Vickie Williams says:

    EMTALA is spending clause legislation. The requirement to provide services in the emergency room to all who come, regardless of ability to pay, is only incumbent upon those hospitals that have an ER and accept Medicare. Theoretically, (although not practically), hospitals have a choice–they can opt out of Medicare and not have the obligation. As we know, the court has never held a piece of spending clause legislation to cross the line into impermissible “coercion.” The individual mandate finds its source in either the Commerce Clause or the taxing power. The Court’s analyses of the scope of congressional power under these sources has been quite different from the way it has analyzed Congressional spending power.