Obamacare: An Unconstitutional Misadventure
This week, the United States Supreme Court has on its plate the defining legal issue of our time—the constitutionality of the Patient Protection and Affordable Care Act (ACA), which I have already commented on from a doctrinal and historical perspective. In this column, I will show how fatal defects in Obamacare’s structure undermine the constitutional case for key provisions found in Title I of the law (“Quality, Affordable Health Care for All Americans”), which regulates the private insurance market.
For openers, the ACA is subject to the law of unintended consequences. The law may proclaim that it protects patients when it in fact it restricts the health-care options of those it’s intended to protect. The ACA says that it will increase access to affordable care when in fact its endless mandates will drive up the cost of care. The false advertising of the ACA’s title conceals a wealth of difficulties with its internal design, which make its scheme unsustainable in the long run.
One unfortunate byproduct of the obsessive emphasis on the individual mandate—the requirement to have health-care insurance or pay a fine—is that it diverts attention away from the many other unsound provisions of the law. The Supreme Court need not fear that striking down Title I of the ACA will deny Americans needed health care. Rather, its implementation will have that effect, as I explain further in my weekly column for Hoover's Defining Ideas.
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Comments:
Jan '11
Re: Obamacare: An Unconstitutional Misadventure
How are Social Security and Medicare different? Aren't those programs mandates as well?
Edited on March 26, 2012 at 1:01pmFeb '11
Re: Obamacare: An Unconstitutional Misadventure
Richard Epstein:
For openers, the ACA is subject to the law of unintended consequences.
All the consequences were very much intended.
Feb '11
Re: Obamacare: An Unconstitutional Misadventure
LowcountryJoe: How are Social Security and Medicare different? Aren't those programs mandates as well? · 34 minutes ago
Edited 31 minutes ago
Aren't they taxes? Congress can tax to it's heart's content. But this program was specifically sold as being not- a-tax.
Edited on March 26, 2012 at 1:36pmSep '11
Re: Obamacare: An Unconstitutional Misadventure
Professor Epstein,
What about expatriates? Has anyone commented on the impact of the Individual Mandates on expatriate Americans--particularly those living in countries with nationalized health "care" that would not meet the requirements established by Her Imperial Highness, the Secretary of HHS?
Americans must join a qualifying plan, or pay a fine on their income tax return. Expatriates are required to file an income tax return--and pay taxes on their income earned overseas (in addition to taxes paid in that country). If an expat lives in a country with government-run healthcare, but the local plan doesn't meet every jot and tittle of the U.S. requirement, the expat would be required to pay a fine. And the expat would have essentially no way to avoid the fine.
Examples? There are American citizens living in the Vatican--which, I believe, has a government-run healthcare system. I'd think that the healthcare plans of a number of other countries (Italy, perhaps Japan, others) also would not qualify.
These are all citizens who will not participate in the U.S. healthcare system--and will be punished as a result.
Jul '11
Re: Obamacare: An Unconstitutional Misadventure
I'm with Israel, this was intended to destroy.
Sep '11
Re: Obamacare: An Unconstitutional Misadventure
Based on my understanding it is not coincidence that PPACA incentives steer financing and coverage choices toward a socialized endpoint. There are no alternatives that lead away from nationalized coverage appearing the preferable choice.
BTW -- the Uncommon Knowledge video podast with you and John Yoo really helped distill for me the essence of key Supreme Court considerations taking place currently.