But hospitals must treat emergency patients. It really is a problem that some people use this service and fail to pay their bills. But even if you assume the Commerce Clause empowers Congress to solve that market dysfunction — patients consuming a service they can’t pay for — the individual mandate requires a purchase of insurance that covers vastly more services than these required emergency hospital visits.
It seems to me that younger, healthier individuals are being swept in to accumulate an immense fund that will be used to cover the expenses of older, sicker folks. It’s the exploitation of the young, ironically. But Koppelman doesn’t want you think precisely about what the legislation does, and who’s really being required to pay for what. He’d like to roll you up into a big ball of emotion where you visualize poor little children….
While the acknowledgement of a collective action problem is one small step for Althouse, the policy argument here is still wrong. Had Congress merely required young people to purchase catastrophic insurance, this would address the free rider problem that makes arguments that people are being “forced” to enter the healthcare market a joke. But it wouldn’t be remotely adequate to address the adverse selection problem that would result if the insurance pool for most medical services didn’t contain the young and healthy and insurance companies weren’t allowed to discriminate against pre-existing conditions. In addition, Althouse seems to have joined one of the strangest Republican ideas to have emerged from the Tea Party era, the War On the Concept of Insurance. Why do we allow people to get into car accidents “exploit” those who don’t? Why do we allow people whose houses burn down “exploit” those whose houses don’t? Except that as applied to health care this argument is even dumber because while most people’s houses don’t burn down most people get old and everybody dies. The typical young person will only end up being “exploited” by universal insurance (or Medicare) if Althouse’s allies in Congress and the Supreme Court succeed in destroying the safety net (plans that always, it’s worth nothing, exclude Althouse’s demographic from the immense pain she would happily inflict on future generations. Now that’s exploitation.)
But leaving aside the merits of these policy arguments, they’re completely misplaced as applied to a commerce clause/necessary and proper clause case. Even if we assume that Althouse is right that the mandate should be narrower given Congress objectives — which of course she isn’t — it’s beside the point. As has been well-settled (a few utterly discredited anomalies like Dagenhart aside) for nearly 200 years that “any means adapted to the end, any means which tended directly to the execution of the Constitutional powers of the Government, were in themselves Constitutional.” As Toobin recently pointed out, the majority opinion in Heart of Atlanta upholding the Civil Rights Act is also directly on point:
It may be argued that Congress could have pursued other methods to eliminate the obstructions it found in interstate commerce caused by racial discrimination. But this is a matter of policy that rests entirely with the Congress, not with the courts. How obstructions in commerce may be removed — what means are to be employed — is within the sound and exclusive discretion of the Congress. It is subject only to one caveat — that the means chosen by it must be reasonably adapted to the end permitted by the Constitution.
Althouse, in other words, seems to be smuggling a narrow tailoring requirement from fundamental rights or equal protection doctrines into a federal powers case, but this is completely inappropriate even if we ignore the fact that it’s wrong on its own terms. Congress needs only have ends that are rationally related to these means, and the ACA passes this minimal requirement at least as easily as the Civil Rights Act. Which, of course, is the point: like Dagenhart, the most prominent argument against the ACA doesn’t really have anything to do with state sovereignty; it’s a “liberty of contract” argument in a bad disguise. And (especially to people like Althouse who wouldn’t follow the libertarian premises where they logically lead and hold the Civil Rights Act and Social Security unconstitutional) it’s “liberty of contract” in the worst Dagenhart sense, meaning “the Supreme Court should randomly strike down some laws I don’t like based on really, really bad policy arguments.” For the Court to exhume Lochner like this would be outrageous.
…I agree with a commenter that Holbo’s classic Dead Right review remains the definitive analysis of the War on the Concept of Insurance.