Another Problem with Challenges to the Individual Mandate

The Federal District Court in Florida decided this week, following two other District Courts, that it can reach the merits of something that won’t take effect for more than three years.  Since no court thus far has decided that discretion is the better part of valor when it comes to the individual health insurance mandate, I guess maybe it’s time to mothball that argument.  (So much for judicial restraint.)

With respect to the merits, let me expand on something that I said in a prior post.  Opponents of the mandate say that it is unprecedented for Congress to use its Commerce Clause power to regulate inactivity or compel activity.  Of course, it is not unprecedented for Congress to use its powers to regulate inactivity or compel activity.  We draft citizens for military service, juries, and paying taxes.  What distinguishes those activities?   The leading argument, at least in the briefs and in some of the academic commentary, is that those are basic duties of citizenship, whereas buying health insurance is not.  (Of course, the health care reform act itself arguably makes the purchase of health insurance a basic duty, but let’s leave that aside.)

A potential problem with this claim, however, is that we already have a fundamental right to health care.  It’s called going to the emergency room for free.  This right is pretty well-established both in terms of its age (since the 1980s) and in the settled expectations surrounding its exercise.  The argument against the mandate, though, holds that there is no corresponding duty to pay for that health care if you can.

Accordingly, I’m not sure why the mandate should be seen as an unconstitutional unfunded mandate.  Why isn’t this more properly assessed as an attempt to create a constitutional right to free-ride ?  Now I suppose a plaintiff could say, “I don’t want to buy health insurance, and I will never accept free medical treatment from an emergency room.”  Maybe that guy is analogous to a conscientious objector to the draft and we should say that he cannot be required to buy insurance. (I think that if Congress had not exempted those with religious objections from the health insurance mandate, then it would be unconstitutional as applied to them.)  I don’t see, though, why somebody who is happy to take the free health care in the ER can claim that he has a right not to pay for it.

UPDATE:  On reflection, the conscientious objector does have a constitutional right to free-ride.  So I suppose what I’m really saying is that you need a more specific showing than just “I don’t want to buy health insurance” to succeed.

UPDATE #2:  You could even go further and argue that this is a constitutional right to welfare claim in disguise.  (“I am entitled to health care without having to pay for it.”)

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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.