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Bar News - July 19, 2013


Book Review: Breaking Down the Supreme Court’s ObamaCare Decision

By:

ObamaCare on Trial by Prof. Einer Richard Elhauge(CreateSpace: 2012)

Could you explain the Supreme Court’s approach to ObamaCare’s individual mandate in terms that do not require a law degree? That’s what Harvard Law Professor Einer Elhauge has done in a remarkably readable set of essays on Nat’l Federation of Independent Business et al. v. Sibelius. I highly recommend this slim, well-paced book. Written informally and addressing a general audience, it is still valuable to a legal audience.

Some disclaimers: Any Supreme Court decision as long as this one – 187 pages – is beyond the scope of this book, and the focus is on the individual mandate. Regardless of whether you like the Court’s ObamaCare ruling, Elhauge’s discussion of the mandate is refreshingly free of political ideology.

Elhauge uses a question-and-answer format. The first question is, “Has Congress ever enacted an individual mandate to buy health insurance?” Turns out it has. In 1790, the first Congress included 20 framers of the Constitution, and that Congress passed a health insurance mandate. “Namely, a requirement that ship owners buy medical insurance for their seaman. This law was then signed by another framer: President George Washington. That’s right, the father of our country had no difficulty imposing a health insurance mandate.”

Was that just an accident of history? No. As Elhauge continues, “Six years later, in 1798, Congress enacted a federal law requiring the seamen to buy hospital insurance for themselves.” Five framers served in that Congress.

Why did Congress require the sailors to buy hospitalization insurance? It was because the 1790 law covered drugs and physicians, but not hospital stays. The 1798 Congress plugged a hole in health coverage by passing an individual mandate to buy hospital insurance. So much for the notion that Congress never imposed an individual mandate. And it doesn’t stop there.

Elhauge walks the reader through more recent Supreme Court decisions that call into question much of the political debate surrounding ObamaCare. Laurence Tribe rightly calls Elhauge’s analysis “devastating.”

Is a health insurance mandate a tax, or can Congress make you buy broccoli? Of course, “because purchase mandates are just an obligation to pay money, they are really no different from taxes. Indeed, the challengers conceded that Congress could have imposed a financially identical requirement if it had just used the language of taxes and tax credits… Under their theory, Congress could still impose the dreaded broccoli tax mandate by just calling it a tax that one can avoid if one buys broccoli.”

Did the Solicitor General do a lousy job of defending ObamaCare? Elhauge argues that the solicitor general should not have accepted the premise that it is unprecedented for Congress to impose a mandate on economic inactivity, because the uninsured as a class are active in the health care market. This is because a Reagan-era statute requires virtually all hospitals to provide emergency services to anyone needing them regardless of citizenship or ability to pay.

Was Chief Justice Roberts’ decision upholding ObamaCare motivated by institutional concerns? Elhauge doesn’t say, but he speculates that if the chief justice had an institutional or political agenda, then it might have been to preserve the possibility of privatizing Medicare or Social Security, since privatization would likely mandate payments to private parties, just like ObamaCare – private health insurers under Paul Ryan’s plan and private retirement plans under George Bush’s plan.

Elhauge brings hefty credentials to this discussion. His essays have appeared in The New Republic, The Atlantic, and The New York Times, among others. Does that suggest Elhauge supports ObamaCare? He does, but in a most lucid and engaging manner.

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