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Cost-Benefit Federalism: Reconciling Collective Action Federalism and Libertarian Federalism in the Obamacare Litigation and beyond

Published online by Cambridge University Press:  06 January 2021

Abigail R. Moncrieff
Abigail R. Moncrieff*
Affiliation:
Boston University School of Law
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The lawsuits challenging Obamacare’s individual mandate have exposed a rift in federalism theory. On one side of the divide is a view that the national government ought to intervene—and ought to be constitutionally permitted to intervene—whenever the states are “separately incompetent” to regulate a particular subject. According to this view, the primary purpose of the Constitution’s enumeration of national powers is to authorize Congress to fix collective action problems among the states. Borrowing from Robert Cooter and Neil Siegel’s article of the same name, I refer to this view as “collective action federalism.” On the other side of the divide is a view that federalism exists for reasons other than efficiency of regulation and particularly that the Founders created the federal structure for the protection of individual liberty. According to this view, there is inherent value to state power that ought to be preserved against national encroachments.

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Article
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American Journal of Law & Medicine , Volume 38 , Issue 2-3 , June 2012 , pp. 288 - 325
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Copyright © American Society of Law, Medicine and Ethics and Boston University 2012

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References

1 See Patient Protection and Affordable Care Act, 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 (to be codified primarily in scattered sections of 42 U.S.C.) [hereinafter ACA]. The moniker “Obamacare” is one that has been associated with the law's opponents, but I like the name better than “PPACA” or “ACA” and will therefore use it despite arguing for the statute's constitutionality.

2 See ACA § 1501 (codified as amended at 26 U.S.C.A. § 5000A (West 2012)).

3 See Cooter, Robert & Siegel, Neil S., Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115, 117 (2010)Google Scholar (quoting 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 131-32 (Max Farrand ed., rev. ed. 1966)).

4 See, e.g., Balkin, Jack, Commerce, 109 Mich. L. Rev. 1, 46–47 (2010)Google Scholar; McKinley Brennan, Patrick, The Individual Mandate, Sovereignty, and the Ends of Good Government: A Reply to Professor Barnett, 159 U. Pa. L. Rev. 1623 (2011)Google Scholar; Hall, Mark A., Commerce Clause Challenges to Health Care Reform, 159 U. Pa. L. Rev. 1825 (2011)Google Scholar; Koppelman, Andrew, Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform, 121 Yale L.J. Online 1 (2011)Google Scholar, http://yalelawjournal.org/2011/04/26/koppelman.html; Siegel, Neil S., Free Riding on Benevolence: Collective Action Federalism and the Individual Mandate, 75 Law & Contemp. Probs. (forthcoming 2012)Google Scholar; Smith, Peter J., Federalism, Lochner, and the Individual Mandate, 91 B.U. L. Rev. 1723 (2011)Google Scholar. See generally Sam Singer, Defending the Affordable Care Act: What the Justice Department Can Learn from the Legal Academy, VA. REV., http://www.vareview.com/ContributorArticles/Articles/AboutTheHealthCareLawsuits.aspx (last visited Feb. 21, 2012) (noting that most members of the legal academy seem to be following a collective action theory of federalism in their defenses of Obamacare).

5 See Cooter & Siegel, supra note 3.

6 Id.

7 See THE FEDERALIST NO. 51 (James Madison).

8 See, e.g., Barnett, Randy E., Commandeering the People: Why the Individual Health Insurance Mandate Is Unconstitutional, 5 N.Y.U. J.L. & Liberty 581 (2010)Google Scholar [hereinafter Balkin, Commandeering the People]; Barnett, Randy E., Jack Balkin's Interaction Theory of Commerce, 2012 U. Ill. L. Rev. (forthcoming 2012)Google Scholar; Lawson, Gary & Kopel, David B., Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, 121 Yale L.J. Online 267 (2011)Google Scholar, http://yalelawjournal.org/2011/11/08/lawson&kopel.html; Somin, Ilya, Taking Stock of Comstock: The Necessary and Proper Clause and the Limits of Federal Power, 2010 Cato Sup. Ct. Rev. 239Google Scholar; Kurt T. Lash, “Resolution VI”: National Authority to Resolve Collective Action Problems Under Article I, Section 8 (Ill. Pub. Law & Legal Theory, Research Paper No. 10-40, 2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1894737.

9 Compare Cooter & Siegel, supra note 3, at 185 n.243, with Barnett, Commandeering the People, supra note 8, at 582-83.

10 See generally Cooter & Siegel, supra note 3, at 131-34 (tracing the economic/noneconomic distinction in the precedent); Hills, Roderick M. Jr.,, The Individual Right to Federalism in the Rehnquist Court, 74 Geo. Wash. L. Rev. 888 (2006)Google Scholar (describing the same distinction and comparing it to the distinction for individual substantive rights, which is also generally an economic/noneconomic distinction).

11 See generally Hills, Roderick M. Jr.,, The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and “Dual Sovereignty” Doesn’t, 96 Mich. L. Rev. 813 (1998)CrossRefGoogle Scholar (discussing the phenomenon of cooperative federalism programs and the political economy of intergovernmental relations within those programs).

12 See MALCOLM M. FEELEY & EDWARD RUBIN, FEDERALISM: POLITICAL IDENTITY AND TRAGIC COMPROMISE (2008) (noting that federalism and decentralization ought to be treated as separate concepts and that national authority need not imply full centralization of decision-making); Moncrieff, Abigail R. & Lee, Eric, The Positive Case for Centralization in Health Care Regulation: The Federalism Failures of the ACA, 20 Kan. J.L. & Pub. Pol’Y 266, 278-79 (2011)Google Scholar (noting that Medicare captures many advantages of state control by running policy experiments and decentralizing authority to local fiscal intermediaries).

13 See Hills, supra note 11, at 858-71.

14 See United States v. Lopez, 514 U.S. 549, 557 (1995) (stating a “rational basis” test for review of national regulations defended under the Commerce Clause).

15 See OBAMACARE: MANDATORY SOCIALIZED MEDICINE, http://www.akdart.com/obama184.html (last visited Feb. 21, 2012) (webpage containing many links to commentaries about Obamacare).

16 See Lash, supra note 8, at 2-3.

17 See Koppelman, supra note 4, at 12-13.

18 See Hills, supra note 10, at 904.

19 See Lash, supra note 8, at 2-3.

20 Cooter & Siegel, supra note 3, at 137.

21 Id.

22 Throughout this Article, I will apply a rational actor model to regulatory decision-making. The rationality I apply here, however, is the tautological kind of rationality. If a government chooses to regulate, I assume that the benefits of the regulation outweigh the costs from the relevant government's perspective. Many lawmakers might include disfavored interests in the cost-benefit calculus, such as the lawmakers’ personal pecuniary interests, and many lawmakers might suffer cognitive distortions in their assessments of costs and benefits, such as hyperbolic discounting. Those kinds of distortions undoubtedly are problematic insofar as they lead lawmakers to enact non-optimal regulations. None of that, though, undercuts the point I make here, which is just that externalization of costs and benefits to other governments is also a problem that likewise leads lawmakers to enact nonoptimal regulations. This point does not at all depend on the objective rationality of the lawmaker, though it does depend on a tautological assumption that lawmakers will not enact a regulation that, from their perspective, has higher costs than benefits.

23 It is possible that externalities can be positive from the regulating state's perspective, in which case externalization will push states to over-regulate rather than under-regulate. That is not the relevant case for Obamacare, however, and I therefore will not address that case here.

24 I use the “util” (a hypothetical unit common in the economics literature to measure overall utility) as the unit of measurement for lack of any other unit that can capture the many varied costs and benefits of regulation, including those like happiness or sadness that are not subject to monetization. The util also permits the fiction that we can measure utility interpersonally, which is a fiction that I indulge for the stylized analysis here.

25 As I mentioned in note 23, supra, there are cases in which e1 or e2 is negative, causing the states to over-regulate relative to optimum, but because that is not the relevant case for Obamacare and the individual mandate, I do not address that phenomenon here.

26 It is always mathematically true that the ratio of perimeter to area for any shape decreases as the shape grows. Perimeter grows linearly with size while area grows exponentially. For example, a circle's perimeter to area ratio is 2πr : πr2. As the radius of the circle (r) grows, 2πr increases linearly, but πr2 increases exponentially. The ratio between the two therefore decreases. The same is true for a square with a side of length x, for which the ratio of perimeter to area is 2x : x2, and the same is true for any complex geometric shape. The math is more complicated for shapes in fractal dimensions, like coastlines, but the principle is the same.

27 For the sake of simplicity, I assume here that the cost to the manufacturer of moving from Massachusetts to New Hampshire is the same as the cost to the manufacturer of moving from Massachusetts to China. That assumption is obviously inaccurate, both in terms of the practical costs of moving and in terms of the political and social costs of outsourcing. The distinction, though, cuts in favor of my point here that the e2 will be less for national action than for state action; it will be much more likely that a regulated entity will move from state to state (harming the first state to regulate) than that a regulated entity will move from nation to nation (harming the first nation to regulate).

28 Cooter & Siegel, supra note 3, at 137-38 (distinguishing between large parks on mountaintops, which are likely to attract visitors from all over the country and are therefore national parks, and small city parks, which are likely to benefit primarily the citizens who live close by).

29 Id. at 137.

30 514 U.S. 549 (1995).

31 529 U.S. 598 (2000).

32 Cooter & Siegel, supra note 3, at 163.

33 Id.

34 See id. at 163-64.

35 Lopez, 514 U.S. at 564.

36 See generally LOUIS HARRIS, A SURVEY OF EXPERIENCES, PERCEPTIONS, AND APPREHENSIONS ABOUT GUNS AMONG YOUNG PEOPLE IN AMERICA (1993) (using survey data to document an increase in gun possession in schools).

37 United States v. Morrison, 529 U.S. 598 (2000).

38 See id. at 634-36.

39 Cooter & Siegel, supra note 3, at 154-55.

40 See Cooter & Siegel, supra note 3, at 135-44.

41 See supra Part II.A.1.

42 Florida ex rel. Att’y Gen. v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235, 1284, 1291-92 (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, (noting at the outset that the “ultimate goal” of “structural constitutional limitations” is “the protection of individual liberty” and that the mandate's perceived intrusion on freedom “strikes at the very heart of whether Congress has acted within its enumerated power”).

43 See generally supra note 8 and sources cited therein.

44 See Cooter & Siegel, supra note 3, at 139-44. This point is simply an application of the Coase theorem. See generally Coase, R. H., The Problem of Social Cost, 3 J.L. & Econ. 1 (1960).CrossRefGoogle Scholar

45 See Virginia v. Tennessee, 148 U.S. 503, 519 (1893) (interpreting and applying the Compacts Clause of the Constitution, U.S. CONST. art. I, § 10, cl. 3).

46 See generally U.S. Steel Corp. v. Multistate Tax Comm’n, 434 U.S. 452 (1978).

47 See Coase, supra note 44.

48 See Cooter & Siegel, supra note 3, at 140-41.

49 Congress, of course, is not really a majority voting system. The Senate's filibuster rule requires a sixty percent vote among states, and the Senate's equal representation of states requires far more than a sixty percent vote among the American populace. Nevertheless, the three-fifths voting requirement in the Senate is an easier hurdle to overcome than the unanimous voting requirement for compacts.

50 See Cooter & Siegel, supra note 3, at 141.

51 Id. at 140-41.

52 Forty-nine state legislatures (all but Nebraska) have two chambers and therefore more closely resemble supermajority rule. Unlike Congress, though, all state legislative districts abide by proportional representation requirements; only the national Senate violates the one-person, one-vote requirement. Furthermore, representation is imperfect, and it is certainly possible that a regulation could fail despite majority or even supermajority popular support or that a regulation could pass despite majority or even supermajority popular opposition.

53 See, e.g., Elhauge, Einer, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 Yale L.J. 31, 34–44 (1991)CrossRefGoogle Scholar.

54 See generally Cooter & Siegel, supra note 3.

55 It is for this reason that I have argued elsewhere for greater nationalization of healthcare policy, on the ground that healthcare regulation is increasingly objectivist and therefore transparent in its costs and benefits. See generally Moncrieff & Lee, supra note 12; Moncrieff, Abigail R., The Supreme Court's Assault on Litigation: Why (and How) It Might Be Good for Health Law, 90 B.U. L. Rev. 2323 (2010)Google Scholar.

56 See generally Tiebout, Charles M., A Pure Theory of Local Expenditure, 64 J. Pol. Econ. 416 (1956)CrossRefGoogle Scholar (modeling interstate competition and theorizing that such competition could theoretically result in optimal regulatory bundles).

57 See supra Part II.A.1 for the discussion of externality e2.

58 The two-party system creates one kind of direct competition, but it does not prevent collusion within a single party, which might be enough to allow tyrannical regulation of the relevant kind.

59 Anti-Federalist George Clinton made all of these points in arguing against the adoption of the Constitution:

[W]hat can you promise yourselves, on the score of consolidation of the United States into one government? Impracticability in the just exercise of it, your freedom insecure, even this form of government limited in its continuance, the employments of your country disposed of to the opulent, to whose contumely you will continually be an object. You must risk much, by indispensably placing trusts of the greatest magnitude, into the hands of individuals whose ambition for power, and aggrandizement, will oppress and grind you. Where, from the vast extent of your territory, and the complication of interests, the science of government will become intricate and perplexed, and too mysterious for you to understand and observe; and by which you are to be conducted into a monarchy, either limited or despotic; the latter, Mr. Locke remarks, is a government derived from neither nature nor compact.

George Clinton, Republican Government: Cato, No. 3, in 1 THE COMPLETE ANTI-FEDERALISTS 126, 126 (Herbert Storing ed., University of Chicago Press, 1981).

60 Notably, tyrannical or self-serving regulation is not always the same thing as over-regulation. Refusal to implement equality protections for racial minorities, for example, might serve the interests of the regulating class even though it involves less governmental intrusion.

61 This point, too, appears in the Anti-Federalist papers:

[F]or the sake of argument, I will admit that the necessary consequence of rejecting or delaying the establishment of the new constitution would be the dissolution of the union, and the institution of even rival and inimical republics; yet ought such an apprehension, if well founded, to drive us into the fangs of despotism? Infinitely preferable would be the occasional wars to such an event. The former, although a severe scourge, is transient in its continuance, and in its operation partial, but a small proportion of the community are exposed to its greatest horrors, and yet fewer experience its greatest evils; the latter is permanent and universal misery, without remission or exemption. As passing clouds obscure for a time the splendor of the sun, so do wars interrupt the welfare of mankind; but despotism is a settled gloom that totally extinguishes happiness.

Centinel, Union: Centinel, No. 11, in 1 THE COMPLETE ANTI-FEDERALISTS, supra note 59, at 231.

62 See Cooter & Siegel, supra note 3, at 136.

63 See THE AMERICAN CONSTITUTION: FOR AND AGAINST 3-6 (J.R. Pole ed., 1987) (describing the coordinating efforts that the colonies made to fight the Revolutionary War).

64 See generally Ackerman, Bruce A. & Hassler, William T., Beyond the New Deal: Coal and the Clean Air Act, 89 Yale L.J. 1466 (1980)CrossRefGoogle Scholar (describing the odd dirty coal/clean air coalition that formed during implementation of the Clean Air Amendments in a 1979 ruling by the Environmental Protection Agency (EPA)).

65 See id. at 1483-87 (describing the EPA's decision-making process).

66 See generally Maria Godoy, State By State: The Legal Battle Over Gay Marriage, NPR (Feb. 7, 2012), http://www.npr.org/2009/12/15/112448663/state-by-state-the-legal-battle-over-gay-marriage (showing that Maine has a marriage protection statute while Vermont allows gay marriage).

67 This portrayal is one-sided only for the sake of simplicity. The story works just as well if we imagine harms arising in a marriage equality state flowing into a traditional marriage state. The traditional marriage state is unlikely to change its regulatory result in response to those harms.

68 See generally Budetti, Peter P. & Waters, Teresa M., Medical Malpractice Laws in the United States, Kaiser Fam. Found., 22 (2005)Google Scholar, http://www.kff.org/insurance/upload/Medical-Malpractice-Law-in-the-United-States-Report.pdf (indicating that the average damage award in Nevada is significantly higher than in California); Ethan M.J. Lieber, Medical Malpractice Reform and the Distribution of Physicians (Univ. of Chi. Dep't of Econ., Working Paper, 2012), http://home.uchicago.edu/∼elieber/advselpaper.pdf (finding that negligent doctors are more likely than non-negligent doctors to move in response to changing medical malpractice laws).

69 For a similar argument, see Hills, supra note 10, and Hills, Roderick M. Jr.,, Federalism as Westphalian Liberalism, 75 Fordham L. Rev. 769 (2006)Google Scholar

70 See United States v. Lopez, 514 U.S. 549, 557 (1995).

71 Notably, Congress responded to Lopez in 1996, less than a year after the Court's opinion, by simply adding a jurisdictional element to the statute, such that it applies only to guns that have traveled in interstate commerce (which is the vast majority of them). See Pub. L. No. 104-208, Title VI, § 657, 110 Stat. 3009, 3009-369 to 3009-370 (1996). The statute has thus been in nearly continuous effect since its first enactment in 1990, notwithstanding its invalidation in Lopez.

72 Wechsler, Herbert, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543 (1954)CrossRefGoogle Scholar.

73 See id.

74 See generally Farber, Daniel A., The Constitution's Forgotten Cover Letter: An Essay on the New Federalism and the Original Understanding, 94 Mich. L. Rev. 615, 618-26 (1995)CrossRefGoogle Scholar (tracing the origins of “the new federalism”—the Court's renewed assertions of authority to enforce federalism norms—from the 1970s through the Lopez decision).

75 See generally Wechsler, supra note 72.

76 See generally Metzger, Gillian E., Administrative Law as the New Federalism, 57 Duke L.J 2023 (2008)Google Scholar. For a discussion of states’ roles in selecting senators and presidents, see Wechsler, supra note 72.

77 For the proposition that preemption is worse for states and federalism than commandeering, see generally Bulman-Pozen, Jessica & Gerken, Heather, Uncooperative Federalism, 118 Yale L.J. 1256 (2009)Google Scholar.

78 See generally Weiser, Philip J., Towards a Constitutional Architecture for Cooperative Federalism, 79 N.C. L. Rev. 663 (2001)Google Scholar; Hills, supra note 11.

79 See Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996) (codified at 1 U.S.C. § 7; 28 U.S.C. § 1738C). Several federal court cases are currently considering the substantive and structural constitutionality of DOMA. See, e.g., Hara v. Office of Pers. Mgmt., No. 09-3134 (Fed. Cir. May 18, 2009); Torres-Barragan v. Holder, No. 10-55768 (9th Cir. May 14, 2010); Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374 (D. Mass. 2010); Massachusetts v. U.S. Dep't of Health & Human Servs., 698 F. Supp. 2d 234 (D. Mass. 2010); Bishop v. United States, No. 04-848 (N.D. Okla.); Dragovich v. Dep't of the Treasury, No. 10-1564, 2012 WL 253325 (N.D. Cal. Jan. 26, 2012). President Obama has decided not to defend the statute in court. See Savage, David G. & Oliphant, James, Obama Administration Shifts Legal Stance on Gay Marriage, L.A. TIMES (Feb. 23, 2011)Google Scholar, http://articles.latimes.com/2011/feb/23/nation/la-na-obama-gay-marriage-20110224/2.

80 See Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419.

81 I realize that this may be a controversial—and is certainly an atypical—view of DOMA, but its limiting effect on externalities is certainly one of its effects.

82 See generally Sharpe, Jamelle C., Legislation Preemption, 53 Wm. & Mary L. Rev. 163, 175-80 (2011)Google Scholar (describing doctrinal preemption rules and generally theorizing Congress's power to set its own rules for preemption).

83 See Gonzales v. Raich, 545 U.S. 1 (2005).

84 Preemption rules generally flow from the Supremacy Clause. See Altria Grp. v. Good, 555 U.S. 70, 76 (2008).

85 See, e.g., Compassionate Use Act of 1996, CAL. HEALTH & SAFETY CODE § 11362.5 (West 1996); Oregon Medical Marijuana Act, OR. REV. STAT. ANN. § 475.300 (West 1998); see also 16 Legal Medical Marijuana States and DC: Laws, Fees, and Possession Limits, PROCON.ORG (Feb. 8, 2012), http://medicalmarijuana.procon.org/view.resource.php?resourceID=000881.

86 See Johnston, David & Lewis, Neil A., Obama Administration to Stop Raids on Medical Marijuana Dispensers, N.Y. TIMES, Mar. 19, 2009Google Scholar, at A20.

87 See generally 16 Legal Medical Marijuana States and DC, supra note 85.

88 See Hoeffel, John, Obama Shifts to a Hard Line on Pot Sales: For-Profit Medical Marijuana Sales Are Target of Wide-Ranging Crackdown in State, L.A. TIMES, Oct. 8, 2011Google Scholar, at 1.

89 See Kamala Harris Defends Medical Marijuana: California Attorney General Asks Federal Government to Ease Enforcement, HUFFINGTON POST (Oct. 20, 2011, 9:55 PM), http://www.huffingtonpost.com/2011/10/21/kamala-harris-defends-medicalmarijuana_n_1023310.html.

90 See, e.g., Weeks Leonard, Elizabeth, State Constitutionalism and the Right to Health Care, 12 U. Pa. J. Const. L. 1325, 1338 (2010)Google Scholar (defining cooperative federalism programs, such as Medicare and the State Children's Health Insurance Program (SCHIP), as ones where states “receive a percentage-on-the-dollar match from the federal government for every state dollar spent”); Rose-Ackerman, Susan, Cooperative Federalism and Co-optation, 92 Yale L.J. 1344 (1983)CrossRefGoogle Scholar (arguing for cooperative federalism through federal grants and monies); see also Hills, supra note 11.

91 See generally Bulman-Pozen & Gerken, supra note 77.

92 See generally Moncrieff, Abigail R., Comment, Payments to Medicaid Doctors: Interpreting the “Equal Access” Provision, 73 U. Chi. L. Rev. 673, 675-76 (2006)Google Scholar (describing the basic structure of Medicaid's cooperative federalism).

93 See Moncrieff, supra note 55, at 2350-51.

94 See Review of State Plan Material, 42 C.F.R. § 430.14 (2012) (designating regional staff to review state Medicaid plans and amendments).

95 Medicaid has not been the most successful cooperative federalism program. See generally Moncrieff, supra note 55. Other such programs, particularly in telecommunications and environmental law, have done better. See, e.g., Weiser, Philip J., Chevron, Cooperative Federalism, and Telecommunications Reform, 52 Vand. L. Rev. 1 (1999)Google Scholar; Kaswan, Alice, A Cooperative Federalism Proposal for Climate Change Legislation: The Value of State Autonomy in a Federal System, 85 Denv. U. L. Rev. 791 (2008)Google Scholar.

96 See, e.g., Bulman-Pozen & Gerken, supra note 77; Metzger, supra note 76.

97 Cass R. Sunstein, Humanizing Cost Benefit Analysis, Remarks Prepared for American University's Washington College of Law Administrative Law Review Conference (Feb. 17, 2010), available at http://www.whitehouse.gov/omb/oira_speech_02172010 (describing the use of cost-benefit analysis by the Office of Information and Regulatory Affairs, which oversees all federal regulations).

98 SUP. CT. R. 37.

99 See 18 U.S.C. § 201 (2006) (prohibiting bribery of public officials and witnesses).

100 This rule for federalism also makes some sense of the Supreme Court's choice to scrutinize legislative findings in Commerce Clause cases. See United States v. Lopez, 514 U.S. 549, 562 (1995).

101 Throughout this Part, I will borrow heavily from two amicus briefs that my students and I coauthored for the Supreme Court litigation, under the supervision of attorneys Andrew Fischer and Kevin Outterson. See Brief of Amici Curiae Jewish Alliance for Law & Social Action (JALSA), Jewish Council on Urban Affairs (JCUA), Jewish Social Policy Action Network (JSPAN), New England Jewish Labor Committee (JLC), & Professor Abigail R. Moncrieff in Support of Petitioners on the Individual Liberty Implications of the Minimum Coverage Provision, Dep't of Health and Human Servs. v. Florida, No. 11-398 (U.S. Jan. 13, 2012), 2012 WL 160243 [hereinafter JALSA Brief]; Brief Amici Curiae of Prescription Policy Choices, Professors of Law, & Professors of Health Policy in Support of Petitioners on the Minimum Coverage Provision, Dep't of Health & Human Servs. v. Florida, No. 11-398 (U.S. Jan. 13, 2012), 2012 WL 160229 [hereinafter PPC Brief]. I thank Andrew and Kevin, as well as students David Arnold, Julia Mirabella, Zoë Sajor, Rachel Smit, Kyle Thomson, Hao Wang, and Emily Westfall, for their contributions to this research.

102 The Eleventh Circuit, for example, merely asserted without citation or elaboration “that the individual mandate supersedes a multitude of the states’ policy choices in these key areas of traditional state concern.” Florida ex rel. Att’y Gen. v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235, 1306 (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).

103 Compare Patient Protection and Affordable Care Act of 2010, H.R. 3590, 111th Cong. (2010) (Senate version of the bill), with America's Affordable Health Choices Act of 2009, H.R. 3200 (2009), Title II, Subtitle A, available at http://www.opencongress.org/bill/111-h3200/text.

104 See 42 U.S.C.A. § 300gg-1-1–19a (2012).

105 Jennings, Christopher C. & Hayes, Katherine J., Health Insurance Reform and the Tensions of Federalism, 362 New Eng. J. Med. 2244, 2245 (2010)CrossRefGoogle ScholarPubMed (noting that states will continue licensing insurers).

106 See McCarran-Ferguson Act, 15 U.S.C. §§ 1011-1015 (2006).

107 42 U.S.C.A. § 300gg-94 (West 2012).

108 15 U.S.C. §§ 1011-1015.

109 See Dinan, Jonathan, Shaping Health Reform: State Government Influence in the Patient Protection and Affordable Care Act, 41 Publius 395, 399, 412-13 (2011)CrossRefGoogle Scholar.

110 42 U.S.C.A. § 300gg-22.

111 Id. § 18031.

112 See generally Kingsdale, Jon & Bertko, John, Insurance Exchanges Under Health Reform: Six Design Issues for the States, 29 Health Aff. 1158 (2010)CrossRefGoogle ScholarPubMed; State Actions to Implement Health Exchanges, NAT’L CONF. OF STATE LEGS. (Feb. 25, 2011), http://www.ncsl.org/issuesresearch/health/state-actions-to-implement-the-health-benefit-exch.aspx (demonstrating that the states are already taking advantage of the statute's flexibility and pursuing divergent strategies for implementing exchanges).

113 42 U.S.C.A. § 18052; see also Press Release, Office of the Press Sec’y, Fact Sheet: The Affordable Care Act: Supporting Innovation, Empowering States (Feb. 28, 2011), available at http://www.whitehouse.gov/the-press-office/2011/02/28/fact-sheet-affordable-care-act-supportinginnovation-empowering-states.

114 See 42 U.S.C. § 1395 (2006).

115 See Id. § 1396.

116 Pub. L. 93-406, 88 Stat. 829 (1974).

117 Pub. L. 104-191, 110 Stat. 1936 (1996).

118 See generally Korobkin, Russell, The Battle of Self-Insured Health Plans, or “One Good Loophole Deserves Another,” 5 Yale J. Health Pol’Y L. & Ethics 89, 92–105 (2005)Google ScholarPubMed (explaining ERISA preemption).

119 Compare 42 U.S.C.A. § 300gg-1–19a (West 2012) (insurance regulations), with 26 U.S.C.A. § 5000A (West 2012) (individual mandate).

120 See generally Siegel, supra note 4. See also Brief for Petitioners (Minimum Coverage Provision), Dep't of Health & Human Servs. v. Florida, No. 11-398 (U.S. Mar. 7, 2012).

121 See 26 U.S.C.A. § 5000A.

122 See CONRAD F. MEIER, DESTROYING INSURANCE MARKETS: HOW GUARANTEED ISSUE AND COMMUNITY RATING DESTROYED THE INDIVIDUAL HEALTH INSURANCE MARKET IN EIGHT STATES (Council for Affordable Health Ins. & Heartland Inst. eds., 2005), available at http://www.cahi.org/cahi_contents/resources/pdf/destroyinginsmrkts05.pdf.

123 322 U.S. 533 (1944).

124 ACA, Pub. L. No. 111-148, § 1501 (2010), amended by Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (codified in 26 U.S.C.A. § 5000A).

125 See generally Moncrieff, Abigail R., Federalization Snowballs: The Need for National Action in Medical Malpractice Reform, 109 Colum. L. Rev. 844 (2009)Google Scholar (describing the externalization problems that arise from federal spending programs like Medicare and Medicaid).

126 Cf. Siegel, supra note 4.

127 Congress asserted in two findings that the individual mandate would “increase the number and share of Americans who are insured,” 42 U.S.C.A. § 18091(a)(2)(C) (West 2012), and would achieve “near-universal coverage,” id. § 18091(a)(2)(D). The next finding noted that “[t]he economy loses up to $207 [billion] a year because of the poorer health and shorter lifespan of the uninsured” and that near-universal coverage “will significantly reduce this economic cost.” Id. § 18091(a)(2)(E). Even without the explicit acknowledgement in § 18091(a)(2)(E) that Congress's goal is to eliminate selfinsurance, the stated goal of near-universal coverage in § 18091(a)(2)(C)-(D) supports the notion that Congress sought to eliminate the self-insured market.

128 See Gonzales v. Raich, 545 U.S. 1 (2005).

129 See PPC Brief, supra note 101.

130 See Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd (2006).

131 See Florida ex rel. Att’y Gen. v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235, 1291- 92 (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) (“Individuals subjected to this economic mandate have not made a voluntary choice to enter the stream of commerce, but instead are having that choice imposed upon them by the federal government.”); id. at 1328 (“This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to buy an expensive health insurance product they have elected not to buy … .”).

132 See generally JALSA Brief, supra note 101. See also 26 U.S.C.A. § 5000A(b) (West 2012); id. § 5000A(c)(1) (capping possible penalties at the cost of an average private plan).

133 26 U.S.C.A. § 5000A(b).

134 For lengthier analysis of the analogy between the mandate and a tax, including rebuttals of some arguable distinctions between the two, see JALSA Brief, supra note 101, at 11-22.

135 See Florida ex rel. Att’y Gen., 648 F.3d at 1291-92.

136 Pear, Robert, Health Care Law Will Let States Tailor Benefits, N.Y. TIMES, Dec. 16, 2011Google Scholar, at A1, available at http://www.nytimes.com/2011/12/17/health/policy/health-care-law-to-allow-statesto-pick-benefits.html?_r=2.