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The Liberty of Free Riders: The Minimum Coverage Provision, Mill’s “Harm Principle,” and American Social Morality
Published online by Cambridge University Press: 01 February 2021
Abstract
[A] direct requirement for most Americans to purchase any product or service…. certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family. The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local—or seemingly passive—their individual origins.
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References
1 Seven-Sky v. Holder, 661 F.3d 1, 20 (D.C. Cir. 2011) (footnote omitted), petition for cert. filed, 80 U.S.L.W. 3359 (Nov. 30, 2011) (No. 11-679).
2 Pub. L. No. 111-148, 124 Stat. 119 (2010), amended by Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (to be codified at 42 U.S.C.).
3 26 U.S.C. § 5000A (2010).
4 See, e.g., Neil S. Siegel, Free Riding on Benevolence: Collective Action Federalism and the Minimum Coverage Provision, 75 LAW & CONTEMP. PROBS. (forthcoming 2012) (manuscript at 1-8), available at http://ssrn.com/abstract=1843228.
5 See Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 STAN. L. REV. 115, 135-44 (2010).
6 Judge Silberman was referencing Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964), Gonzales v. Raich, 545 U.S. 1 (2005), and Wickard v. Filburn, 317 U.S. 111 (1942).
7 See Siegel, supra note 4 (manuscript at 41).
8 For an argument that the minimum coverage provision and shared responsibility payment are within the scope of the tax power, see generally Robert D. Cooter & Neil S. Siegel, Not the Power to Destroy: A Theory of the Tax Power for a Court that Limits the Commerce Power, 99 VA. L. REV. (forthcoming 2013), available at http://ssrn.com/abstract=1989537.
9 The Court has held that Congress may regulate only “economic” or “commercial” subject matter when using its commerce power in cases involving allegedly substantial effects on interstate commerce. See, e.g., Raich, 545 U.S. at 17-19 (stressing the economic/non-economic distinction); United States v. Morrison, 529 U.S. 598, 610-13 (2000) (same); United States v. Lopez, 514 U.S. 549, 559-60 (1995) (same).
10 See generally Siegel, supra note 4.
11 Congress determined that in 2008 alone, the “cost of providing uncompensated care to the uninsured was $43,000,000,000.” 42 U.S.C. § 18091(2)(F) (2010). Congress further found that “health care providers pass on the cost to private insurers, which pass on the cost to families. This cost shifting increases family premiums by on average over $1,000 a year.” Id.
12 See Brief for America's Health Insurance Plans as Amicus Curiae in Support of Neither Party at 3, Virginia ex rel. Cuccinelli v. Sebelius, 659 F.3d 253 (4th Cir. 2011) (Nos. 11-1057, 11-1058), petition for cert. filed, 80 U.S.L.W. 3221 (U.S. Sept. 30, 2011) (No. 11-420) (“Without an individual mandate requirement, more individuals will make the rational economic decision to wait to purchase coverage until they expect to need health care services. If imposed without an individual mandate provision, the market reform provisions would reinforce this ‘wait-and-see’ approach by allowing individuals to move in and out of the market as they expect to need coverage, undermining the very purpose of insurance to pool and spread risk.”). See generally KENNETH J. ARROW, ESSAYS IN THE THEORY OF RISK BEARING (1971).
13 JOHN STUART MILL, ON LIBERTY 67-175 (David Bromwich & George Kateb eds., Yale Univ. Press 2003) (1859).
14 See, e.g., Bryan J. Leitch, Where Law Meets Politics: Freedom of Contract, Federalism, and the Fight over Health Care, 27 J.L. & POL. 177, 180-81 (2011).
15 Cf. Jack M. Balkin, Ideology and Counter-Ideology from Lochner to Garcia, 54 U. MO. KAN. CITY L. REV. 175, 187 (1986) (observing that “a private party's right to refuse to enter into contractual relations with any person was considered the essence of liberty of contract”).
16 DICK ARMEY & MATT KIBBE, GIVE US LIBERTY: A TEA PARTY MANIFESTO 66-68 (2010); see Dick Armey & Matt Kibbe, Op-Ed., A Tea Party Manifesto, WALL ST. J., Aug. 17, 2010, at A19.
17 THE CONTRACT FROM AMERICA, available at http://www.contractfromamerica.com/thecontract-from-america/ (last visited Feb. 21, 2012).
18 The Contract states:
The purpose of our government is to exercise only those limited powers that have been relinquished to it by the people, chief among these being the protection of our liberties by administering justice and ensuring our safety from threats arising inside or outside our country's sovereign borders. When our government ventures beyond these functions and attempts to increase its power over the marketplace and the economic decisions of individuals, our liberties are diminished and the probability of corruption, internal strife, economic depression, and poverty increases.
Id.
19 Virginia Health Care Freedom Act, Act of Mar. 10, 2010, ch. 108, 2010 Va. Acts 102 (codified at VA. CODE ANN. § 38.2-3430.1:1 (Supp. 2011)).
20 Jim Nolan, Virginia Argues Against Mandate to Purchase Health Insurance; Judge Promises to Rule on Constitutionality of U.S. Law by Year's End, RICHMOND TIMES DISPATCH, Oct. 19, 2010, at A-1.
21 Bill McCollum, Commentary, Defending Floridians Against Unlawful Mandate, TAMPA TRIB. (Aug. 8, 2010), http://www2.tbo.com/news/opinion/2010/aug/08/co-defending-floridians-againstunlawful-mandate-ar-41488/.
22 Amici Curiae Brief of the American Center for Law & Justice et al. in Support of Plaintiffs/Appellees at 22, Virginia ex rel. Cuccinelli v. Sebelius, 659 F.3d 253 (4th Cir. 2011) (Nos. 11-1057, 11-1058), petition for cert. filed, 80 U.S.L.W. 3221 (U.S. Sept. 30, 2011) (No. 11-420).
23 See Jim Rutenberg, Romney Defends Massachusetts Health Plan, but Concedes Flaws, N.Y. TIMES, May 13, 2011, at A20. Rutenberg reports:
But his embrace of the mandate—a policy some Republicans once had favored but nearly all now reject as unwarranted incursion by the government into personal decisions and private markets—seemed to trump his larger states’ rights argument for some conservatives. “He was for it when he was governor and now it's clearly something that the broad coalition of conservatives feels is not a good idea at the national level or at the state level,” said James C. Capretta, an associate director of health care policy at the Office of Management and Budget during Mr. Bush's first term and now a fellow at the Ethics and Public Policy Center.
Id.
24 Romney's status as Republican front-runner for the presidency does not detract from the point in the text. Most likely, he has achieved that status despite his past support for an individual mandate on the state level, not because of it.
25 Virginia ex rel. Cuccinelli v. Sebelius, 728 F. Supp. 2d 768, 788 (E.D. Va. 2010) (emphasis added), vacated, 656 F.3d 253 (4th Cir. 2011), petition for cert. filed, 80 U.S.L.W. 3221 (U.S. Sept. 30, 2011) (No. 11-420).
26 Florida ex rel. Bondi v. U.S. Dep't Health & Human Servs., 780 F. Supp. 2d 1256, 1286 (N.D. Fla.), order clarified, 780 F. Supp. 2d 1307 (N.D. Fla.), aff’d in part, rev’d in part, 648 F.3d 1235 (11th Cir. 2011), cert. granted sub nom. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 603 (2011) (mem.), and cert. granted, 132 S. Ct. 604 (2011) (No. 11-398) (mem.) (argued Mar. 26-27, 2012), and cert. granted in part, 132 S. Ct. 604 (2011) (No. 11-400) (mem.) (argued Mar. 28, 2012). This appeal overlooks the historically critical distinction between taxation without representation and taxation (or regulation) with representation.
27 See, e.g., Richard A. Epstein, Obama's Constitution: The Passive Virtues Writ Large, 26 CONST. COMMENT. 183, 191 (2010) (stating that “the Commerce Clause argument mistakenly cast the autonomy issue as a federalism issue when it is in fact one about individual entitlements against government, which should be as powerful against state action as against federal action”); Leitch, supra note 14, at 180-81 (concluding after “canvassing the oppositional literature” that “the recurrent and unavoidable leitmotif of disagreement with the PPACA is its alleged violation of liberty—and in particular, economic liberty”).
28 MASS. GEN. LAWS ch. 111M, § 2 (2008).
29 See Andrew Koppelman, Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform, 121 YALE L.J. ONLINE 1, 14–15 (2011), http://yalelawjournal.org/2011/04/26/koppelman.html.
30 42 U.S.C.A. §§ 300gg(a)(1), 300gg-1(a), 300gg-3(a), 300gg-11, 300gg-12 (West 2012) (respectively prohibiting discriminatory premium rates, discrimination based on health status, preexisting condition exclusions, lifetime limits on the dollar value of benefits, and rescission except in the case of fraud).
31 Compare, e.g., Lochner v. New York, 198 U.S. 45, 53 (1905) (“The general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution … . The right to purchase or to sell labor is part of the liberty protected by this amendment … .”), with W. Coast Hotel Co. v. Parish, 300 U.S. 379, 391 (1937) (“What is this freedom [of contract]? The Constitution does not speak of freedom of contract.”). See also Richard A. Primus, Canon, Anti-Canon, and Judicial Dissent, 48 DUKE L.J. 243, 244 (1998) (“Lochner is never cited for its legal authority. Although it has never been formally overruled, it is well understood among constitutional lawyers that relying on Lochner would be a pointless, if not a self-destructive, endeavor.”).
32 See, e.g., Florida ex rel. McCollum v. U.S. Dep't of Health & Human Servs., 716 F. Supp. 2d 1120, 1161-62 (N.D. Fla. 2010) (rejecting argument that “people have ‘recognized liberty interests in the freedom to eschew entering into a contract’”).
33 See, e.g., ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 45 (1962) (“Serving this value [of laissez-faire] in the most uncompromising fashion, at a time when it was well past its heyday, five Justices, in a series of spectacular cases in the 1920's and 1930’s, went to unprecedented lengths to thwart the majority will. The consequence was very nearly the end of the story.”).
34 For a recent account of the political fight over President Franklin Delano Roosevelt's “courtpacking” plan, see JEFF SHESOL, SUPREME POWER: FRANKLIN ROOSEVELT VS. THE SUPREME COURT (2010). See also BARRY FRIEDMAN, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION 3-8, 202, 214, 217-36 (2009).
35 See, e.g., Melvin I. Urofsky, State Courts and Protective Legislation During the Progressive Era: A Reevaluation, 72 J. AM. HIST. 63 (1985). Urofsky observes that “[r]ecent studies of the United States Supreme Court have led to a revision of that institution's image as a thoroughgoing enemy of reform” during the Progressive Era. Id. He argues that such a revision is also warranted with respect to state courts:
In surveying state court decisions prior to World War I involving the basic elements of the Progressive program to protect workers—laws involving child labor, maximum hours, employer liability, and workmen's compensation—one finds that, with only a few exceptions, state courts moved consistently toward approval of a wide range of reform legislation. In attempting to enact their program, Progressives, although occasionally delayed in the courts, were not blocked there.
Id. at 64. Urofsky suggests that “Lochner … ought to be seen as an aberration,” one that “had only a limited impact on state courts.” Id. at 79.
36 The Constitutionality of the Affordable Care Act: Hearing Before the S. Comm. on the Judiciary, 112th Cong. 4 (2011) (testimony of Charles Fried, Beneficial Professor of Law, Harvard Law School).
37 197 U.S. 11 (1905).
38 198 U.S. 45 (1905).
39 For an argument that the ACA exaction for being uninsured is a tax for purposes of Congress's tax power, notwithstanding that Congress called it a “penalty,” see generally Cooter & Siegel, supra note 8.
40 See Jacobson, 197 U.S. 11.
41 See, e.g., Cruzan v. Mo. Dep't of Health, 497 U.S. 261 (1990) (recognizing the right of a competent adult to refuse unwanted medical treatment).
42 For a discussion of the right to bodily integrity, see Neil S. Siegel, Four Constitutional Limits that the Minimum Coverage Provision Respects, 27 CONST. COMMENT. 591, 599-601 (2011).
43 Cf. Florida ex rel. Bondi v. U.S. Dep't Health & Human Servs., 780 F. Supp. 2d 1256, 1289 (N.D. Fla.), order clarified, 780 F. Supp. 2d 1307 (N.D. Fla.), aff’d in part, rev’d in part, 648 F.3d 1235 (11th Cir. 2011), cert. granted sub nom. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 603 (2011) (mem.), and cert. granted, 132 S. Ct. 604 (2011) (No. 11-398) (mem.) (argued Mar. 26-27, 2012), and cert. granted in part, 132 S. Ct. 604 (2011) (No. 11-400) (mem.) (argued Mar. 28, 2012) (“Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system.”).
44 Jacobson, 197 U.S. at 26.
45 Id. at 27.
46 See supra notes 11-12 and accompanying text (discussing the cost shifting and adverse selection problems).
47 In general, “externalities” refer to unpriced benefits and costs. They are external to the market.
48 The other standard forms of market failures are monopoly and asymmetric information. See, e.g., ROBERT D. COOTER, THE STRATEGIC CONSTITUTION 105-08 (2000) (analyzing the technical characteristics of goods that can cause markets to fail).
49 Id. at 105 (“Market failure provides the conventional economic justification for state supply and regulation of goods.”).
50 See generally Cooter & Siegel, supra note 5.
51 THE CONTRACT FROM AMERICA, supra note 17.
52 MILL, supra note 13, at 76.
53 Id. at 80. “His own good, either physical or moral, is not a sufficient warrant.” Id.
54 Id. at 139.
55 Id.
56 Id. Mill reiterated both parts of his distinction in part V:
The maxims are, first, that the individual is not accountable to society for his actions, in so far as these concern the interests of no person but himself. Advice, instruction, persuasion, and avoidance by other people if thought necessary by them for their own good, are the only measures by which society can justifiably express its dislike or disapprobation of his conduct. Secondly, that for such actions as are prejudicial to the interests of others, the individual is accountable, and may be subjected either to social or to legal punishment, if society is of opinion that the one or the other is requisite for its protection.
Id. at 156.
57 Bowers v. Hardwick, 478 U.S. 186 (1986).
58 Lawrence v. Texas, 539 U.S. 558 (2003).
59 Washington v. Glucksberg, 521 U.S. 702 (1997).
60 Gonzales v. Raich, 545 U.S. 1 (2005).
61 See David Bromwich, A Note on the Life and Thought of John Stuart Mill, in ON LIBERTY, supra note 13, at 1-5, 18-25 (on Mill's relation to his father, the family's bond with Bentham, and Mill's mature view of Bentham's thought).
62 See JOHN RAWLS, A THEORY OF JUSTICE 27 (1971) (“Utilitarianism does not take seriously the distinction among persons.”).
63 See generally JOHN STUART MILL, THE SUBJECTION OF WOMEN (M.I.T. Press 1970) (1869). See also Bromwich, supra note 61, at 7, 17-18 (discussing Mill's view of sexual equality).
64 See Bromwich, supra note 61, at 5-10 (discussing Mill's relation to Romanticism and his conclusion that utilitarian achievement alone could not be reason to live).
65 See MILL, supra note 13, at 83 (“The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not deprive others of theirs, or impede their efforts to obtain it.”).
66 For a discussion of these laws and practices, see infra Part V.
67 MILL, supra note 13, at 139.
68 Id.
69 Id. (emphasis added).
70 Id. at 82.
71 Id. at 81.
72 Id.
73 Id. at 139.
74 Id. at 80 (emphasis added).
75 For most people, the ACA's exaction for going without insurance is relatively modest. In 2014, the annual exaction for noncompliance will be the greater of ninety-five dollars or one percent of income. 26 U.S.C. § 5000A(c) (2010). By 2016, the annual exaction will be the greater of $695 or 2.5 percent of income. Id. When a tax rate gets very high, it prevents people from engaging in the taxed conduct, which coerces them much like a penalty. The minimum coverage provision is too low to have this effect. This exaction increases with income until it hits a cap at “the national average premium for qualified health plans which have a bronze level of coverage,” the lowest level of health insurance coverage that satisfies the minimum coverage provision. Id. § 5000A(c)(1)(B), 5000A(b)(1). The exaction costs less than insurance for many people, so people who are determined to remain uninsured will do so. For an analysis of the incentive effects and predicted consequences of the ACA's exaction, see generally Cooter & Siegel, supra note 8.
76 Such individuals are inactive in the insurance market for the time being but often are active in the healthcare market. See generally Siegel, supra note 4.
77 For a discussion, see generally id.
78 See Brief Amici Curiae of the Am. Hospital Ass’n et al. in Support of Defendant-Appellant and Reversal at 12, Virginia ex rel. Cuccinelli v. Sebelius, 659 F.3d 253 (4th Cir. 2011) (Nos. 11-1057, 11-1058), petition for cert. filed, 80 U.S.L.W. 3221 (U.S. Sept. 30, 2011) (No. 11-420) (citing numerous studies finding that “[t]he decision of some uninsured individuals to put off regular preventive care actually increases their activity in the health care market in the long run”). This last harm, moreover, cannot be addressed fully through actuarially appropriate pricing of insurance policies. This is because of the adverse selection problem that undermines the operation of health insurance markets even absent the ACA's prohibitions on the restrictive practices of insurance companies. See Siegel, supra note 4 (observing that the market for health insurance attracts adverse selection, even absent the ACA's prohibitions on underwriting, because individuals know much more about their health status than insurers do).
79 Mitt Romney, Health Care for Everyone? We Found a Way, WALL ST. J., Apr. 11, 2006, at A16; see also id. (reporting that forty percent of the state's uninsured population “were earning enough to buy insurance but had chosen not to do so” because insurance “is expensive, and because they know that if they become seriously ill, they will get free or subsidized treatment at the hospital”).
80 See JOHN RAWLS, POLITICAL LIBERALISM 223-27 (1993) (on the content of public reasons and their independence from more specific substantive “comprehensive doctrines”). We are thus philosophically committed to the position that liberty is not self-defining—that one must go outside the concept to understand its content and scope.
81 See id.
82 Some have argued that, because we are all psychologically affected by knowledge of one another's conduct, much of what Mill seems to have regarded as self-regarding conduct in fact has meaningful effects on others. This argument in effect denies the coherence of much libertarian thinking. See, e.g., Cooter & Siegel, supra note 5, at 152-54 (discussing psychological externalities); William W. Fisher, When Should We Permit Differential Pricing of Information?, 55 U.C.L.A. L. REV. 1, 26 (2007) (same). We do not take sides on this question here because our purpose is not to defend a libertarian position, and because the minimum coverage provision targets material externalities. For our purposes, it suffices to assume that there is a defensible line between paternalistic and non-paternalistic reasons, at least in principle.
83 See, e.g., Randy E. Barnett, Commandeering the People: Why the Individual Health Insurance Mandate Is Unconstitutional, 5 N.Y.U. J.L. & LIBERTY 581 (2010).
84 MILL, supra note 13, at 139.
85 At bottom, the issue is what Americans owe one another, not what individuals owe “the state.” The ACA, like Social Security, Medicare, and Medicaid, seeks to expand the social safety net in the United States. The ACA does so for the benefit of those who do or may need the social safety net, not for the benefit of the state itself. Compare Barnett, supra note 83, at 631-32 (“What separates the United States from other countries is the minimal and fundamental nature of the duties its citizens owe the state.”). For a different view of the circumstances in which the federal government may mandate private behavior, see generally Siegel, supra note 4.
86 See, e.g., KATHLEEN S. SWENDIMAN & JENNIFER K. ELSEA, FEDERAL AND STATE QUARANTINE AND ISOLATION AUTHORITY, CRS REPORT FOR CONGRESS (Jan. 23, 2007), available at http://www.fas.org/sgp/crs/misc/RL33201.pdf (discussing the quarantine and isolation laws of individuals and the potential constitutional and separation of powers issues). This report begins by quoting Mill's harm principle. See id. at CRS-1.
87 Emergency Medical Treatment and Active Labor Act of 1986 (EMTALA), 42 U.S.C. § 1395dd (2006).
88 See, e.g., Brief for Appellant at 42, Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253 (4th Cir. 2011) (Nos. 11-1057, 11-1058), petition for cert. filed, 80 U.S.L.W. 3221 (U.S. Sept. 30, 2011) (No. 11-420) (discussing state tort law creating liability for failure to provide emergency care).
89 See, e.g., CHARLES E. ROSENBERG, THE CARE OF STRANGERS: THE RISE OF AMERICA's HOSPITAL SYSTEM 347 (1995) (observing that “the hospital never assumed the guise of rational and rationalized economic actor during the first three-quarters of the twentieth century;” that it “continued into the twentieth century, as it had begun in the eighteenth, to be clothed with public interest in a way that challenged categorical distinctions between public and private;” and that “[p]rivate hospitals had always been assumed to serve the community at large— treating the needy”); id. at 352 (seeing “little prospect of hospitals in general becoming monolithic cost minimizers and profit maximizers,” and predicting that American society “will feel uncomfortable with a medical system that does not provide a plausible (if not exactly equal) level of care to the poor and socially isolated”).
90 See supra note 30 and accompanying text (discussing the ACA provisions that restrict the underwriting practices of insurers).
91 See supra note 29 and accompanying text (discussing the popularity of these ACA provisions).
92 We invoke the idea of the American ethos in the same sense as Hanna Pitkin when she writes of “our fundamental nature as a people.” Hanna Fenichel Pitkin, The Idea of a Constitution, 37 J. LEGAL. EDUC. 167, 167 (1987).
93 THE AP-NATIONAL CONSTITUTION CENTER POLL 6 (2011), available at http://surveys.ap.org/data/GfK/AP-GfK%20Poll%20Aug%202011%20FINAL%20Topline_NCC_1st%20story.pdf.
94 The ACA's exaction for non-insurance is inapplicable to people who need not file a federal income tax return because their household incomes are too low, to people whose premium payments would be greater than eight percent of their household income, to individuals who are uninsured for short periods of time, to members of Native American tribes, and to people who show that compliance with the requirement would impose a hardship. 26 U.S.C. § 5000A(e) (2010). Moreover, the minimum coverage provision itself does not apply to undocumented aliens, people in prison, and people with certain religious objections. Id. § 5000A.
95 See supra note 74 (noting that the annual exaction for non-insurance by 2016 will be the greater of $695 or 2.5 percent of income).
96 See Koppelman, supra note 29 (suggesting this possibility).
97 See supra note 11 (citing congressional findings on these costs).
98 See, for example, the Budget Deficit or the National Debt.
99 See, e.g., Michael Cooper, Conservatives Sowed Idea of Health Care Mandate, Only to Spurn It Later, N.Y. TIMES, Feb. 15, 2012, at A15.
100 See JEDEDIAH PURDY, A TOLERABLE ANARCHY: REBELS, REACTIONARIES, AND THE MAKING OF AMERICAN FREEDOM 204-28 (2009) (analyzing competing American conceptions of personal freedom in economic life).
101 See, e.g., Amitabh Chandra, Jonathan Gruber & Robin McKnight, The Importance of the Individual Mandate—Evidence from Massachusetts, 364 NEW ENG. J. MED. 293, 293-95 (2011) (analyzing the approaches of mandates and subsidies and concluding that “the higher the subsidies, the smaller the role for an individual mandate”).
102 See JONATHAN GRUBER, HEALTH CARE REFORM WITHOUT THE INDIVIDUAL MANDATE: REPLACING THE INDIVIDUAL MANDATE WOULD SIGNIFICANTLY ERODE COVERAGE GAINS AND RAISE PREMIUMS FOR HEALTH CARE CUSTOMERS 3-5 (2011), available at http://www.americanprogress.org/issues/2011/02/pdf/gruber_mandate.pdf.
103 See id. at 5-7.
104 Economist Jonathan Gruber of the Massachusetts Institute of Technology, a defender of the minimum coverage provision in the ACA, examined auto-enrollment and late enrollment penalties, finding that “both alternatives significantly erode the gains in public health and insurance affordability made possible by the Affordable Care Act.” Id. at 1. Specifically, Gruber found that “no alternative to the individual mandate can cover more than two-thirds as many uninsured as the Affordable Care Act does;” that “no alternative to the mandate saves much money;” and that “any alternative imposes much higher costs on those buying insurance in the new health insurance exchanges as the healthiest opt out and the less healthy face increased premiums.” Id. at 7.
105 Sheryl Gay Stolberg, Obama's Shift on Mandate May Be Health Law's Undoing, N.Y. TIMES, Nov. 16, 2011, at A22.
106 For development (without endorsement) of an appropriately deferential balancing inquiry in the context of a Commerce Clause challenge, which would reject the minimum coverage provision only if Congress unreasonably rejected regulatory alternatives that were about as effective and less coercive, see Siegel, supra note 42, at 611-16.
107 See, e.g., Barnett, supra note 83.
108 For a refutation of the bootstrapping objection from the perspective of constitutional law, see Siegel, supra note 4, and Stuart M. Benjamin, Bootstrapping, 75 LAW & CONTEMP. PROBS. (forthcoming 2012).
109 See CHARLES E. PHELPS, HEALTH ECONOMICS 318 (4th ed. 2010) (noting the “risk … that insurance companies will put an insurance plan into the market that uses one set of actuarial projections about the costs of insured people but ends up attracting a special subset of the population with unusually high health care costs”).
110 See supra note 78 (discussing the point that the adverse selection problem cannot be solved through pricing alone).
111 Cf., e.g., supra note 33 (quoting Alexander Bickel's interpretation of this period of American history).