Along with the others, I want to thank David for organizing this panel. The great advantage of going last is that the terms of the debate over the Affordable Care Act's constitutionality have been established by the other panelists. As a result, I am going to target my remarks on a few key points, rather than walk through a full dress review of some of the arguments. Like the others, my focus is on existing doctrine. I completely agree with Dean Chemerinsky in thinking that the Supreme Court is not going to change the key parameters of existing analysis, but in any event, my point is that under existing doctrine the challenged provisions are constitutional.
Let me begin with the arguments for the constitutionality of the requirement that individuals purchase health insurance, and in particular, the tax power argument which we have heard reference to, but not too much discussion of, so far. That is an argument that several courts have rejected in the litigation. My view, however, is that the tax power offers a strong basis for the minimum coverage provision and that emphasizing the tax power angle is important because it clarifies how the provision operates. The provision really operates as a tax. Failure to obtain health insurance is not made unlawful. The only consequence is that anyone who fails to purchase health insurance-and who is not exempt from the requirement or does not have insurance through another route-becomes liable for an additional amount on his or her annual tax return. There is no other enforcement. Further, this additional amount is hardly punitive. It is capped in a variety of ways, but the maximum it can ever be is basically the amount that it would cost you to buy minimal insurance on a health exchange for yourself and your family. So, at the most, it is equal to the cost individuals are avoiding by not purchasing insurance.
"Defense of the Constitutionality of Health Care Reform,"
Mercer Law Review: Vol. 62:
2, Article 11.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol62/iss2/11