Why Can’t We Analogize the Mandate?

Legal arguments often rely on analogies.  Indeed, during the first year of law school, students learn to analogize and distinguish cases. “This case is like this one, not that one.” Good lawyers can always conjure up and deploy a good analogy.

So why was it so hard yesterday for some of the most skilled lawyers and judges in the country to identify a good analogy for the individual mandate–the Affordable Care Act’s requirement that almost everyone buy minimum essential health insurance coverage or pay a penalty?

After listening to Tuesday’s historic two-hour oral argument and reading the transcripts, I counted roughly 17 different analogies to the insurance mandate–none of which seem particularly apt.

Here’s a brief rundown of the analogies invoked yesterday (by both the justices and the advocates), and then some thoughts on why they fall flat:

1.  Is mandating health insurance like mandating that people buy cell phones to call 911? (Chief Justice Roberts).

2.  Is the mandate like a requirement that we buy insurance to pay for our own burial services? (A macabre Justice Alito, who’s right: we’re all going to die).

3.  Is the mandate like forcing us to buy broccoli? (Justice Scalia, invoking the dreaded broccoli analogy, which is apparently one of the parade of horribles that logically flows from the health insurance mandate, a canard that David Orentlicher has exposed).

4.  Is it like forcing us to buy cars? (Chief Justice Roberts and later, Justice Scalia, referring to the government’s reply brief, which tried to distinguish a federal mandate that we buy U.S. automobiles from the insurance mandate).

5.  Is it like imposing a duty to rescue strangers in trouble, like a “blind man walking in front of a car”? (Justice Kennedy).

6.  Is it like setting phone rates to require that some callers subsidize others? (Solicitor General Don Verrilli).

7.  Is it like requiring everyone to join an exercise club? (Justice Scalia).

8.  Is it like mandatory inoculation during a pandemic? (Justice Breyer, perhaps inspired by the movie Contagion).

9.  Is it like forcing people to deposit all their money in the Bank of the United States? (Justice Breyer’s colloquy with Paul Clement, counsel for the state plaintiffs, invoking McCulloch v. Maryland).

10.  Would it be like the federal government requiring us to buy car insurance if states didn’t already do so? (Justice Sotomayor, to whom Paul Clement responds that there are lots of people in Manhattan that don’t drive cars. True, but we all have bodies, which require regular tune-ups and sometimes major repairs).

11.  Would it be like Congress forcing everyone to buy “a great new wonder drug”? (Paul Clement).

12.  Is it like growing wheat (Wickard v. Fillburn), or weed (Raich), or carrying guns near schools (Lopez), or committing violence against women (Morrison)? Note that these are the four most direct Commerce Clause precedents, which get comparatively buried during oral argument, amid all the analogy-searching.

13.  Is it like Congress requiring everyone to buy an electric car? (Paul Clement, who is hitting his stride by this point).

14.  Is it like requiring us to buy anti-pollution devices or low-emission mufflers for our cars? (Justice Breyer, who is not).

15.  Is it like requiring that everyone buy private mortgage insurance? (Michael Carvin, counsel for the private plaintiffs).

16.  Is it like requiring some pesticides rather than others in food? (Justice Sotomayor).

17.  Is the decision not to purchase health insurance like local manufacturing, which is regulated federally because some products might, eventually enter interstate commerce? (Justice Sotomayor).

Finally, near the end of two hours of oral argument, Justice Kennedy–the one everyone is watching–hints that health insurance simply may be unique (p. 103 of the transcript).

This last point is important. The reason we can’t analogize health care is because it is, indeed unique. Now, to be fair, the justices are trying to locate a limiting principle here. If the federal government can make us buy health insurance, is there anything it can’t do?

Unfortunately, the limitation here isn’t so much a principle as the unique nature of health care and health insurance. None of the analogies above do the health care market justice (or the health insurance market, which is a distinction without a difference that was probably overemphasized yesterday).

The United States spends $2.6 trillion per year on health care, which is probably far more than all the markets in the above analogies combined. Everyone consumes health care at some point. Health expenses are one of the biggest contributors to bankruptcy in the United States. Insurance is designed to account for the capricious risks that we all face with a stroke of bad health luck. The federal government heavily subsidizes care, and both public and private insurance subsidizes the uninsured. Federal laws like EMTALA aren’t to blame here–most doctors and hospitals would (and do) cross-subsidize care for the uninsured on their own, even without a federal law governing emergency care.

All of the analogies above fail in some obvious way. Indeed, you’d have to combine the salient features of all 17 analogies and create a Frankenstein analogy to approximate the scope, scale, and dynamics of the health care market. Health care is not a conventional good or service by any stretch of the imagination. Whether Justice Kennedy acts on the flicker of intuition that he revealed on this point will probably decide the case.

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11 Responses

  1. Anon says:

    Great post. The “health insurance/health care is unique” argument is the strongest one in support of the mandate’s constitutionality. The supporters of the ACA should hammer away at this argument — IMO, other arguments that are thrown around by supporters (This is just like Wickard! Congress can make you eat broccoli!) just distract from that essential truth.

  2. Elizabeth Weeks Leonard says:

    Thanks, Nathan. This is great. But why do you say that health care markets v. health insurance markets is a distinction without a difference? If we’re talking about health care markets, then the it’s fair to say that someone who chooses to self-pay rather than insure for health care is engaged in commerce. But if we’re talking about health insurance markets, then the point about forcing someone into commerce is stronger. I also think it’s critical that health insurance doesn’t operate as you suggest — protecting individuals against capricious risks and bad health luck. Health insurance as we know it, and even moreso with ACA’s coverage for preventive care, is anything but “insurance” in the traditional sense. It’s pre-payment for health care. And the cross-subsidization effect isn’t limited to unexpected, capricious health care needs.

  3. Nathan Cortez says:

    Hi Elizabeth. Excellent question. I don’t see the health care and insurance markets as being very distinct, just like the housing market and mortgage market aren’t very distinct when you think about it (but there I go, getting into trouble with analogies). Insurance is simply a way to pay for care you’ll invariably need. But “care” can be incredibly broad, as you note — it can be preventive and primary or tertiary and acute. Most of us will need both. And there’s money flying around from insured to uninsured populations in all kinds of ways. Most of us can afford basic preventive care while we’re young. But pre-Medicare populations really struggle to afford even this. But point well taken.

  4. Why do we need a “limiting principle.”? Whatever happened tp political decisions? I see only the vaguest of arguments on one side or the other; so why not let the political branches sort it out (This, of course, is a trend going back a long way; there must be a con resolution, no matter how dubious it is.)

    As for broccoli: Charles Fried got it exacly right. The G can make me buy broccoli, but it cant make me eat it

  5. Matt says:

    Do you see how this argument begs the question?

  6. Seth A. Miller says:

    The striking thing about the analogies is that they are purely ideological. They have little or nothing to do with the commerce clause. The legal question is supposedly whether the refusal to purchase health insurance is “commerce” that can be regulated. As a matter of pure commerce clause analysis, the fact that multiple refusals drastically impacts the operation of the insurance market should be enough to compel an affirmative answer, under Wickard v. Filburn.

    To posit an individual right not to purchase health insurance, or anything else, says almost nothing about whether the exercise of that right is or is not commerce.

    In fact, the Solicitor General might have disposed of some of the analogies thrown at him by simply saying that, under Lopez, the legislation would appear not to relate to commerce. A law to promote health (eat broccoli! join a gym! buy a wonder drug!), or to take better care of ourselves or one another (buy burial insurance! rescue strangers! carry a cel phone!) could easily be said to be as distant from the commerce power as the don’t-carry-guns-near-schools legislation struck down in Lopez. The fact that these analogies were even posed in the first place is a troubling sign that the justices are deciding first whether they like the law, and only later whether there is any doctrine to back up that preference.

    Some of the hypotheticals clearly deal with commerce (buy mortgage insurance! buy car insurance!), but nobody seemed to point out that once we are dealing with commerce, the analysis is supposed to come to a halt. If the government has the power to regulate commerce, it necessarily has the power to do so in a way that infuriates conservative activists.

  7. Nicole Huberfeld says:

    If healthcare is unique (which I believe it is), then that is the limiting principle. No analogy need be found.

  8. suzi says:

    Let’s stipulate that Congress can regulate health care. It has policies it can use to regulate the industry in clearly constitutional ways. It can tax. It can create a single payer system. It can regulate insurance companies and health care providers. What it shouldn’t be able to do under our constitution is require individuals to purchase a commercial product the government deems beneficial. Why not just admit that Congress screwed up and Congress can fix the health care system in a way that doesn’t test constitutional limits. These contortions to extend federal powers are needless and divisive.

  9. Joseph Stroud says:

    It’s troubling that the govt lawyer didn’t hit the uniqueness of health care harder. That could lead the court toward a clause like the one in bush v. gore saying this is a one-time ruling that doesn’t have broad application because of the uniqueness — a much cleaner and more logical “way out” than one of the third-day options of deciding which parts of the ACA to discard.

  10. L Lomond says:

    Interesting post.

    There was a reason why the act used the Commerce power rather than the taxing power (e.g. FICA) but I cannot recall what it was.

    Could someone please refresh my recollection?

  11. L Lomond says:

    “The G can make me buy broccoli, but it cant make me eat it.”

    But the G man can make you pay a larger premium or penalty if you don’t eat it.