Obamacare And The Courts

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A federal judge has ruled that healthcare reform's individual mandate is constitutional. A key part of the ruling:

The health care market is unlike other markets. No one can guarantee his or her health, or ensure that he or she will never participate in the health care market. Indeed, the opposite is nearly always true. The question is how participants in the health care market pay for medical expenses  through insurance, or through an attempt to pay out of pocket with a backstop of uncompensated care funded by third parties.

This phenomenon of cost-shifting is what makes the health care market unique. Far from “inactivity,” by choosing to forgo insurance, plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now through the purchase of insurance, collectively shifting billions of dollars, $43 billion in 2008, onto other market participants.

Cohn cheers and analyzes. Suderman is critical. So is Ilya Somin:

The problem with this reasoning is that those who choose not to buy health insurance aren’t necessarily therefore going to buy the same services in other ways later. Some will, but some won’t. It depends on whether or not they get sick, how severe (and how treatable their illnesses are), whether if they do get sick, they can get assistance from charity, and many other factors. In addition, some people might be able to maintain their health simply by buying services that aren’t usually covered by insurance anyway, such as numerous low-cost medicines available in drug stores and the like. In such cases, they aren’t really participating in the same market as insurance purchasers.

Orin Kerr differs. Randy Barnett thinks this is bigger than heathcare reform:

Judge Steeh offers no limiting principle to the “economic decisions” theory. His acceptance of the government’s argument that the health insurance market is “unique” is window dressing. Allowing Congress to regulate all “economic decisions” in the country because Congress has a rational basis for thinking such mandates are essential to its regulation of interstate commerce cannot and will not be limited to the sort of public goods argument offered in support of this mandate. Given that his decision, on his own account, is expanding federal power beyond existing Supreme Court doctrine, was it not incumbent upon him to deal with the slippery slope issues raised by his newly-minted “economic decisions” doctrine?

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