VOLUME 110 FIRST IMPRESSIONS
COMMENTARIES

Free Rider: A Justification for Mandatory Medical Insurance Under Health Care Reform?

Douglas A. Kahn & Jeffrey H. Kahn

 

Section 1501 of the Patient Protection and Affordable Care Act added section 5000A to the Internal Revenue Code to require most individuals in the United States, beginning in the year 2014, to purchase an established minimum level of medical insurance. This requirement, which is enforced by a penalty imposed on those who fail to comply, is sometimes referred to as the "individual mandate." The individual mandate is one element of a vast change to the provision of medical care that Congress implemented in 2010. The individual mandate has proved to be controversial and has been the subject of a number of lawsuits contending that it is unconstitutional. It is not our purpose in this article to discuss its constitutionality. Rather, this piece focuses on the viability of one of the justifications that often is put forth for the adoption of the individual mandate: the "free-rider" problem.

 

 

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Why It's Called the Affordable Care Act

Nicholas Bagley & Jill R. Horwitz
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J.D.B. v. North Carolina and the Reasonable Person

Christopher Jackson
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Toward a System of Invention Registration: The Leahy-Smith America Invents Act

Jason Rantanen & Lee Petherbridge
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The Unaffordable Health Act: A Response to Professors Bagley and Horwitz

Douglas A. Kahn & Jeffrey H. Kahn
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Clarification Needed: Fixing the Jurisdiction and Venue Clarification Act

William Baude
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How the Gun-Free School Zones Act Saved the Individual Mandate

Richard Primus
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Who's Bringing the Children?: Expanding the Family Exemption for Child Smuggling Offenses

Rebecca M. Abel
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How United States v. Jones Can Restore Our Faith in the Fourth Amendment

Erica Goldberg
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RESPONSES

Rebel Without a Clause: The Irrelevance of Article VI to Constitutional Supremacy

Gary Lawson

With Stare Decisis and Constitutional Text, Jonathan Mitchell has produced what I think is the most interesting and creative textual defense (or at least partial defense) to date of the use of horizontal precedent in federal constitutional cases. Mitchell's careful analysis of the Supremacy Clause is fascinating and instructive, and he does an impeccable job of drawing out the implications of his premise that the Supremacy Clause prescribes only a very limited choice-of-law rule-a rule that does not, by its own terms, specifically elevate the Constitution above federal statutes and treaties. His innovative and intriguing framework yields four distinct conclusions about the permissible uses of precedent. In brief, under Mitchell's analysis, the Supremacy Clause forbids using precedent (1) to invalidate congressional statutes (because congressional statutes are the supreme law of the land while prior court decisions are not) or (2) to uphold constitutionally challenged state laws (because the Constitution is the supreme law of the land while prior court decisions and state-law interpretations of the Constitution are not). Yet, according to Mitchell, the Supremacy Clause does not forbid using precedent (3) to uphold congressional statutes (because both the Constitution and congressional statutes are equally supreme, and there is no constitutional mandate to prefer one to the other) or (4) to invalidate state laws (because neither prior court decisions nor state laws are supreme, and there is no constitutional mandate to prefer one to the other). The article is an eminently worthy contribution to a vibrant debate, and I am delighted to have the opportunity to respond to it-as well as to clarify some ambiguities in my own prior work on precedent.

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