Why Can’t We Analogize the Mandate?

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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.