Affordable Care Act

Published on January 2017 | Categories: Documents | Downloads: 45 | Comments: 0 | Views: 678
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Affordable Care Act Healthcare Industry  Participation in the market for health care is universal  Every individual is always at risk of requiring health care  Magnitude and timing of health care expenses is extremely difficult to predict  Even without insurance people receive care and hospitals required to offer it 1. Questions: a. Is there an important difference between regulating activity and nonactivity? b. Is the healthcare industry special in a significant way? 2. Commerce Clause a. Wickard (Wheat)/Raich (Marijuana) VS Lopez (Guns in school zones)/Morrison (Sexual abuse)  Test 1: Tangible link to commerce? (Comstock)  Test 2: When aggregated, significant impact on IC? b. Government’s Argument  Test 1: Tangible link to commerce? 1. Self-insuring varies only by degree from insuring with a company. Does not vary in kind. a. Two sides of the same coin b. Paying now rather than later 2. Health insurance is quintessentially economic, inference upon inference need not be piled to connect the two.  Test 2: IC Impact 1. HC Industry composes 17.6% of national economy 2. Many people who self-insure are not able to afford health care when they need it, yet the government ensures that they are offered treatment. 3. Wickard/Raich: never entered into the market yet had a significant impact  Action/inaction divide pointless 1. Constitution does not contain this limitation a. The words of the constitution (“regulate,” “commerce,” “necessary,” “proper,”) are words of expansion, not limitation. b. CC is not read with strict scrutiny, but rather on an “appropriate” or “reasonable” “fit” between means and end. 2. Every prohibition is a call to action a. Prohibiting Filburn in Wickard to produce so much wheat compelled him to buy on the market. If someone bought Angel Raich’s house

they would be compelled to destroy the MJ plants. 3. Self-insuring is not inaction a. Inaction is action in finance and risk management i. Warren Buffet: “We continue to make more money when snoring than when active.” And “inactivity strikes us as intelligent behavior.” 4. Addressing fear of expansive interpretation of power: The government can’t force citizens to buy any product, but rather only products that they are already buying in some way or inevitably will buy. a. Legislative deference: the political process will address such a contingency (McCulloch) c. Alternate Argument  Test 1: Not buying health insurance is not an economic activity (no tangible link to commerce) 1. Commerce is defined in Raich as “production, distribution and consumption of commodities” 2. The cost-shifting from uninsured to insured is too tenuous a step to qualify the action as economic because it has economic effects on those in the market (as per the reasoning of Lopez and Morrison)  Government cannot regulate inaction under CC. All previous cases deal with parties in action. 1. Military draft and taxes are under other powers  Government cannot force citizens to buy a product 1. Could congress compel citizens to buy broccoli for health? Or a car to aid a failing car industry?  Lack of political precedent can be telling that the action oversteps Congress’s power  Health and welfare of citizenry is traditionally state right 1. ACA ends state experimentation  Calling HC field an exception creates a dangerous precedent to regulate any exceptional field  Must limit federal powers 3. N&P Clause a. Necessary: Raich notes that non-economic activity can be regulated where it is judged that congress has a rational basis to believe the regulation is essential to a broader IC regulatory scheme. b. Proper: When congress guarantees a benefit for all, it may regulate that benefit. c. No one is required to have insurance, they may choose to pay a penalty

d. Requiring those who self-insure to insure with a company does not propose a constitutional defect.  Salaries, assets, etc. go up and down. 4. Taxing Power

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